The American University in Cairo

The American University in Cairo
School of Global Affairs and Public Policy
TRAFFICKING OF ERITREANS IN EGYPT: FACTS AND
MISCONCEPTIONS
A Thesis Submitted to the
Department of Law
in partial fulfillment of the requirements for the degree of
Master of Arts in International Human Rights Law
By
Emad Daoud
June 2015
1
The American University in Cairo
School of Global Affairs and Public Policy
TRAFFICKING OF ERITREANS IN EGYPT: FACTS AND MISCONCEPTIONS
A Thesis Submitted by
Emad Daoud
to the Department of Law
June 2015
in partial fulfillment of the requirements for the
degree of
Master of Arts in International Human Rights Law
has been approved by the committee composed of
Professor Usha Natarajan _______________________________
Thesis Supervisor
American University in Cairo
Date ____________________
Professor Jason Beckett _______________________________
Thesis First Reader
American University in Cairo
Date ____________________
Professor Hani Sayed _______________________________
Thesis Second Reader
American University in Cairo
Date ___________________
Professor Hani Sayed _______________________________
Law Department Chair
Date ____________________
Professor Nabil Fahmy _______________________________
Dean of GAPP
Date ____________________
2
ACKNOWLEDGEMENTS
This Thesis would have never been completed without the support of my late father
Dr. Guihad Daoud. He was my courage, and my eagerness to complete this degree. I
had a dream that he would witness my graduation but I was unable to enjoy this
moment with him. I will be grateful to him all my life. I also dedicate all this hard
work to my beloved wife Christine who stood by my side for the past years and
endured my continuous demands to focus on my studies. I am also grateful to the
support I received from my mother, brother and sister who have always encouraged
me to go forward with my studies. I appreciate very much the opportunity I had by
working with Professor Usha Natarajan. Her comments and meticulous substantive
review resulted in producing a better quality of my work. Last but never least; I would
like to thank Professor Diana Van Bogaert for her extended support, hard work, and
much appreciated comments. Without her help I don’t believe that I would have
reached this point. This paper is dedicated to all victims of trafficking in this troubled
world. I hope that one day this crime would come to an end.
3
The American University in Cairo
School of Global Affairs and Public Policy
Department of Law
TRAFFICKING OF ERITREANS IN EGYPT: FACTS AND MISCONCEPTIONS
Emad Daoud
Supervised by Professor Usha Natarajan
ABSTRACT
The Egyptian government has not been able to effectively tackle the problem of
trafficking of Eritreans and ensure that this crime would stop. Egypt continues to
resist that Eritreans who are identified in the Sinai Peninsula are in most of the cases
victims of trafficking. The Egyptian legal and institutional frameworks established
have focused mainly on few forms of trafficking, neglecting the problem of Eritreans
in the Sinai and framing it as a problem of illegal migration. In this thesis, the efforts
carried out in Egypt to address the trafficking of Eritreans are analyzed carefully to
highlight where the gaps that require bridging are. One of the reasons having a direct
impact on the Egyptian inability to address the problem is the many gaps in the
international legal framework addressing human trafficking. These gaps include
failure to focus on the root causes that lead to trafficking, inadequate protection
provided to the victims, lack of necessary international cooperation, tightened border
measures, and low conviction rates for trafficking perpetrators. Egypt is
recommended to amend its anti-trafficking law, ensure more effective coordination
between the stakeholders involved in addressing trafficking, focus on capacity
building of its police force and border-patrol in the Sinai, gear its diplomatic efforts
towards international cooperation in this field, and work on eliminating the root
causes of the crime by empowering the tribes of the Sinai. The thesis has reviewed
primary and secondary literature and gathered a clear picture of trafficking in the
Sinai through several interviews conducted with policy-makers and officials from
international organizations involved in addressing trafficking of Eritreans in Egypt.
4
TABLE OF CONTENTS
Introduction ................................................................................................................................ 6
Human Trafficking: Mapping the International Legal Framework ................................. 13
I.
A.
Defining Human Trafficking: The Trafficking Protocol ............................................. 13
B.
Precursors of the Trafficking Protocol ......................................................................... 15
C.
Other international treaties addressing human trafficking ........................................... 22
Human Trafficking of Eritreans in Egypt ........................................................................ 28
II.
A.
Overview ...................................................................................................................... 28
B.
Push Factors ................................................................................................................. 32
C.
Difficulties in Mapping Human Trafficking in Egypt ................................................. 34
Egyptian Legal Framework on Human Trafficking ..................................................... 36
III.
A.
Egyptian Anti-Trafficking Law No 64 (2010) ............................................................. 37
B.
Smuggling or Trafficking of Eritreans in Egypt? ........................................................ 39
Mapping Egyptian Institutional Efforts ....................................................................... 42
IV.
A.
Public Institutions ........................................................................................................ 42
B.
Civil Society................................................................................................................. 46
C.
International Organizations .......................................................................................... 47
Conclusion and Recommendations .................................................................................. 53
V.
Reasons for Ineffectiveness ......................................................................................... 53
A.
1.
Loopholes in the Trafficking Protocol ..................................................................... 53
2.
Failure to Address Root Causes ............................................................................... 55
3.
Gaps in Providing Assistance to Victims ................................................................. 56
4.
International Cooperation at its Weakest ................................................................. 59
5.
Border Measures: How to Criminalize the Victim .................................................. 60
6.
Low Conviction Rates.............................................................................................. 62
Recommendations ........................................................................................................ 63
B.
1.
Amendments to the Law .......................................................................................... 63
2.
Effective Institutional Efforts................................................................................... 69
3.
Robust Law Enforcement ........................................................................................ 74
4.
Economic Empowerment of the Sinai Tribes .......................................................... 78
5.
Diplomatic Efforts ................................................................................................... 80
6.
Relentless Monitoring Activities by International Organizations ............................ 83
Conclusion ............................................................................................................................... 85
5
Introduction
In 2011, a Bedouin tribal leader named Mohamed Rashid in Sinai Egypt recounted to
a journalist how he had discovered a mass grave of Eritreans underneath a house
belonging to suspected traffickers. The Eritreans had been murdered after having been
held in captivity for an unknown period of time. In the vicinity of the grave, were
inscriptions on the walls with such phrases as “In God we trust” and “For those who
have nobody, there is the Almighty.”1 They highlight the despair and the misery that
these victims endured while in captivity, and their desperate hope for survival.
One of the serious challenges in the world today is the issue of human trafficking. A
2005 report issued by the International Labour Organization estimated human
trafficking to be the third most profitable illicit business after drug trafficking and
arms dealing.2 Furthermore, the United Nations Office on Drugs and Crime
(UNODC) indicated that in 2014, victims from 152 nationalities were identified in
124 countries all over the world.3 Recent figures show that 510 different trafficking
flows were identified; with 49% of the victims are women, and 33% of the victims of
children.4 East Asia, Eastern Europe, Central Asia, and Sub-Saharan Africa continue
to be the origins of the highest number of victims identified.5 Western Europe, North
America, and the Middle East are considered the highest destination countries where
victims were identified.6 Statistics further show that around 53% of the identified
victims are victims of sexual exploitation, 40% are victims of forced labour, and
about 7% for other reasons.7 This reflects the broad scope of this criminal activity.8
1
DANIEL REZENE MEKONNEN & MERON ESTEFANOS, FROM SAWA TO THE SINAI DESERT: THE
ERITREAN TRAGEDY OF HUMAN TRAFFICKING 16 (2011), http://papers.ssrn.com/abstract=2055303 (last
visited Sep 3, 2014).
2
Refworld | “A Global Alliance Against Forced Labour”. Global Report Under the Follow-up to the
ILO Declaration on Fundamental Principles and Rights At Work, REFWORLD,
http://www.refworld.org/docid/4289f7254.html (last visited Aug 22, 2014).
3
UNITED NATIONS, GLOBAL REPORT ON TRAFFICKING IN PERSONS 2014: INCLUDES TEXT ON COUNTRY
PROFILES DATA. 5 (2015).
4
Id. at 5.
5
Id. at 41.
6
Id. at 7.
7
Id. at 9.
6
Human trafficking is not new to Egypt. There are several forms of human trafficking
occurring in Egypt.9 One involves the trafficking of Egyptians to countries outside
Egypt, mainly for sexual exploitation. It is this crime that receives major attention
from the Egyptian authorities. Another form of trafficking involves forced sexual
workers from Eastern Europe working in Egyptian nightclubs and underground
brothels.10 Yet another involves the network of Egyptian traffickers who kidnap,
torture, and transport African foreigners. This thesis studies a sub-section of this third
group: Eritreans victims of trafficking in Egypt. Eritreans either arrive in Egypt
willingly and then fall victim to trafficking, or are subject to trafficking beforehand
and forced to enter Egypt as part of the trafficking journey. Some of them came to
Egypt as the first stage of an intended journey to a better life in Europe or Israel;
while others never thought of leaving their countries at all.11
The trafficking of Eritreans in Egypt usually takes them through routes in the Sinai
Peninsula. The problem first received attention in 2006.12 However, the Egyptian
government did not pay attention to punishing traffickers for their crime and
protecting victims, but and instead opted to treat it as a problem of illegal migration.
The problem continued to persist without due attention by the government until 2011.
With the 2011 Egyptian revolution, the trafficking of Eritreans in Sinai surfaced as a
serious problem in Egypt. Several journalists attempted to explore what was
happening in Sinai and more than one documentary movie was shot to highlight the
problem.13 Several reports issued by international organizations and nongovernmental organizations (NGOs) on the matter have asserted that media depiction
Refworld | “A Global Alliance Against Forced Labour”. Global Report Under the Follow-up to the
ILO Declaration on Fundamental Principles and Rights At Work, supra note 2.
9
Law Combating Trafficking in Persons: A Welcome Step that Requires Careful Implementation |
Egyptian Initiative for Personal Rights, 5, http://eipr.org/en/report/2010/11/24/1003 (last visited Aug
22, 2014).
10
LOUISE I SHELLEY, HUMAN TRAFFICKING A GLOBAL PERSPECTIVE 282 (2010),
http://dx.doi.org/10.1017/CBO9780511760433 (last visited May 13, 2014).
11
Interview with the Egyptian National Council for Childhood and Motherhood, (2015).
12
GERALD SIMPSON & HUMAN RIGHTS WATCH (ORGANIZATION), “I WANTED TO LIE DOWN AND DIE”:
TRAFFICKING AND TORTURE OF ERITREANS IN SUDAN AND EGYPT 1 (2014),
www.hrw.org/sites/default/files/reports/egypt0214_ForUpload_1.pdf (last visited May 13, 2014).
13
See DEATH IN THE DESERT, (2011),
https://www.youtube.com/watch?v=Uc1z2hswH9E&feature=youtube_gdata_player (last visited Jan
27, 2015); Saleh, Amal, YOUM7 REVEALS THE SECRETS OF ORGAN TRAFFICKING IN SINAI,
http://english.youm7.com/News.asp?NewsID=347655 (last visited Oct 26, 2014).
8
7
and public understanding of the crime was far less than reality.14 In 2014, The United
Nations High Commissioner for Refugees (UNHCR) reported that between 25,000 to
30,000 persons were victims of trafficking in East Africa and the Horn of Africa.15
Traffickers of sub-Saharan Africans in Egypt alone generated approximately $622
million of profits between 2009 and 2013.16
Egypt provides a thriving environment for human trafficking and is a source, transit,
and destination country. Unfortunately, it has failed to enact any effective laws that
would deter human traffickers. Instead, Egypt prefers to frame the trafficking of
Eritreans on its territory as a crime of smuggling and illegal migration, rather than
trafficking, in order not to burden the state with further international obligations to
punish trafficking perpetrators and protect victims. Adding to that is the assumption
by the Egyptian government that admitting the existence of the crime in Sinai would
jeopardize the international reputation of the country.17 As a result of this reluctance,
traffickers operated freely in Sinai until 2012 when military attention and operations
in the Sinai forced the reduction of the crime.18 This situation is aggravated by the
absence of any actual transnational legal cooperation among states in combating
See WOMEN’S REFUGEE COMMISSION, YOUNG AND ASTRAY: AN ASSESSMENT OF FACTORS DRIVING
THE MOVEMENT OF UNACCOMPANIED CHILDREN AND ADOLESCENTS FROM ERITREA INTO ETHIOPIA,
SUDAN AND BEYOND (2013), womensrefugeecommission.org; UNHCR CAIRO, VICTIMS OF
TRAFFICKING (2013); UNHCR concern at refugee kidnappings, disappearances in eastern Sudan,
14
UNHCR, http://www.unhcr.org/510275a19.html (last visited Jan 28, 2015); Report of the Monitoring
Group on Somalia and Eritrea pursuant to Security Council resolution 1916 (2010) (S/2011/433),
RELIEFWEB (2011), http://reliefweb.int/report/somalia/report-monitoring-group-somalia-and-eritreapursuant-security-council-resolution-1916 (last visited Jan 27, 2015); RACHEL HUMPHRIS, REFUGEES
AND THE RASHAIDA: HUMAN SMUGGLING AND TRAFFICKING FROM ERITREA TO SUDAN AND EGYPT
(2013); SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12; MIRJAM VAN REISEN
ET AL., HUMAN TRAFFICKING IN THE SINAI: REFUGEES BETWEEN LIFE AND DEATH (2012); EveryOne
Group, ERITREAN REFUGEES. WE KNOW WHERE THEY ARE BEING HELD. AUTHORITIES TO INTERVENE
NOW (2010),
http://www.everyonegroup.com/everyone/mainpage/entries/2010/12/4_eritrean_refugees._we_know_w
here_they_are_being_held._authorities_to_intervene_now.html; Laurie Lijnders, CAUGHT IN THE
BORDERLANDS Discursive, Bodily, and Collective Frontiers of Violence and Suffering Experienced
by Eritrean Refugees in Israel, December, 2011.
15
Refworld | Smuggling and Trafficking from the East of Africa : Progress Report, REFWORLD 2
(2014), https://intranetapps.unhcr.org/refworld/country,COI,UNHCR,,YEM,,5437a14d4,0.html (last
visited Oct 13, 2014).
16
Id. at 2.
17
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 60–61.
18
Egyptian armed forces announce results of “Operation Sinai,” DAILY NEWS EGYPT,
http://www.dailynewsegypt.com/2012/09/08/egyptian-armed-forces-announce-results-of-operationsinai/ (last visited Jan 28, 2015).
8
human trafficking including between Egypt and the Horn of Africa countries where
most of these trafficked victims originate.19
As an Egyptian professional working at UNHCR for several years abroad, I was
profoundly alarmed following my return. Scores of African asylum-seekers were
reporting to the UNHCR about active human trafficking rings located in Egypt and
how this network of traffickers were victimizing asylum-seekers who were already
escaping from other forms of persecution, whether in Eritrea, Ethiopia or Sudan. In
my investigation, I further noted that most of the reports addressing the problem
provided descriptive analysis based on the debriefing of the surviving victims.20 What
this material largely lacked, however, was in-depth study on the capacity of the
Egyptian government to properly combat the crime and how their efforts might be
strengthened.
This thesis maps the current efforts exerted by the Egyptian government to address
the human trafficking of Eritreans in the Sinai. The thesis argues that Egypt has the
capacity to curtail this crime under the current Egyptian legal framework and with the
available resources; however, it is the lack of political will that hinders these efforts.
In fact, Egypt continues to frame the problem as an issue of illegal migration. And in
spite of Egypt having already taken very positive steps towards addressing human
trafficking on the legal, institutional, and diplomatic levels, these efforts to date have
failed to reduce the numbers of African victims in the Sinai. The main problem is that
the institutional framework constructed to address the problem has tailored all its
19
Refworld | Smuggling and Trafficking from the East of Africa, supra note 15.
See Laurie Lijnders, supra note 14; Einat Fishbein, DESERT HELL - THE JOURNEY OF REFUGEES
THROUGH THE SINAI DESERT (2010),
http://www.phr.org.il/uploaded/Article_DesertHell_EinatFishbein_Yediot_19.11.10.pdf (last visited
Sep 3, 2014); MEKONNEN AND ESTEFANOS, supra note 1; REISEN ET AL., supra note 14; SIMON M.
WELDEHAIMANOT, KIDNAPPING, HOSTAGE-TAKING AND RANSOMING OF ERITREAN ASYLUM SEEKERS
IN THE SINAI DESERT (2011), http://papers.ssrn.com/abstract=1932457 (last visited Sep 3, 2014);
HUMPHRIS, supra note 14; Sinai Perils: Risks to Migrants, Refugees, and Asylum Seekers in Egypt and
Israel, , http://www.hrw.org/node/75943 (last visited Sep 3, 2014); Hotline for Migrant Workers, “THE
DEAD OF THE WILDERNESS” TESTIMONIES FROM SINAI DESERT, 2010 (2011), http://ardcisrael.org/sites/default/files/testimonies_from_sinay_122010.pdf (last visited Sep 3, 2014); Mirjam van
Reisen, Meron Estefanos & Conny Rijken, The Human Trafficking Cycle, (2013),
http://www.borderline-europe.de/sites/default/files/background/Small_HumanTrafficking-Sinai2-web3.pdf (last visited May 13, 2014); N. R Brown, The Insecurity of Eritreans and Ethiopians in Cairo, 16
INT. J. REFUG. LAW 661–701 (2004).
20
9
planning and implementation towards the service of the Egyptian victims of
trafficking solely, with no attention to the needs of non-Egyptian victims.
To support my thesis, I have interviewed several government officials, NGO
stakeholders, and UN officials on the usefulness of the Egyptian anti-trafficking legal
and institutional framework, and the proposed directions to improve its efficacy. I
have also built on previous studies on the matter, although studies covering trafficking
in Egypt are a few. During data collection for the thesis, I noticed that, of the main
obstacles facing scholars in proposing solutions to combat the issue of trafficking, this
issue cannot be easily approached from one angle. The topic can be studied from a
migration perspective, or in the context of forced labour, violence against women,
prostitution, criminal studies, human rights, child abuse, and many other angles.21
Another set of studies focus mainly on analyzing the psychological trauma endured by
the victims of trafficking;22 in an attempt to find proper services and treatment for
them. Such studies cover the medical and psychological needs of the victims, which is
beyond the scope of this thesis. Furthermore, many sources covering human
trafficking focus on sexual-exploitation; which is not the situation facing many
African victims of trafficking in Egypt.23
Three particular studies are of interest in providing background for this thesis; one
very recent study discusses the policy alternatives of the Egyptian state towards
human trafficking in Egypt.24 This study focuses mainly on the legal framework that
Egypt has in place in its attempt to combat the trafficking of Egyptian children who
are sold for sex to the gulf countries. The study exclusively discusses Egyptian
21
Jane Nady Sigmon, Combating Modern-Day Slavery: Issues in Identifying and Assisting Victims of
Human Trafficking Worldwide, 3 VICT. OFFENDERS 245–257, 245–257 (2008).
22
Chris Beyrer, Is trafficking a health issue?, 363 THE LANCET 564 (2004); Cathy Zimmerman et al.,
The Health of Trafficked Women: A Survey of Women Entering Posttrafficking Services in Europe, 98
AM. J. PUBLIC HEALTH 55–59 (2008); Elizabeth Miller et al., Migration, sexual exploitation, and
women’s health: a case report from a community health center, 13 VIOLENCE WOMEN 486–497 (2007);
Christine A. Courtois, Complex trauma, complex reactions: Assessment and treatment, 41
PSYCHOTHER. THEORY RES. PRACT. TRAIN. 412–425 (2004); Ekaterina V. Shkurkin, THE
CONSEQUENCES OF THE SEXUAL ABUSE IN HUMAN TRAFFICKING (2004), http://predoc.org/docs/index190733.html (last visited May 17, 2014).
23
Eszter KONYVES-KOLONICS, Human trafficking for sexual exploitation and its consequences:
Focusing on Central-Eastern European trafficking, , 99,
http://998top.com/fsh/projections/PDFs/5%20Article.pdf (last visited May 13, 2014).
24
Bernadette Michel Fakhry Guirguis, School of Global Affairs & Public Policy, 2012,
http://dar.aucegypt.edu/handle/10526/3126 (last visited May 13, 2014).
10
women and children victims; who are subjected to a specific environment that leads to
their victimization. Although this study acknowledges the existence of the trafficking
of Eritreans through Sinai, it focused on the actions taken by the Egyptian government
in addressing the needs of the Egyptian victims only.
The second study of particular significance is a report issued by Human Rights Watch
that provides a detailed description of human trafficking of Eritreans in Sudan and
Egypt.25 For a very detailed report, it only provided a descriptive analysis of the
problem through a methodology totally dependent on interviewing different
stakeholders, mainly victims, NGOs, and three Egyptian officials.26 The report does
not explain how the recommendations reached by this study relate to the study itself,
and how these recommendations were reached. A third study by Mekonnen and
Estefanos organizes the testimonies of the victims. The study does not discuss the
efforts carried out by the Egyptian government and does not provide any
recommendations for the Egyptian government. 27
The first chapter provides an analysis of the current international framework covering
human trafficking, how the law has evolved over the past hundred years, and gaps in
international law. This background helps understand where the Egyptian legal
framework is derived from and shows the connection between the gaps in the
international and domestic legal framework. Chapter Two explains how human
trafficking of Eritreans started in Egypt and in the contemporary situation in the Sinai.
I also consider the push factors that propel victims on the route through Egypt. In
Chapter Three I present the Egyptian legal framework. Although the law offers a
progressive step in its text, its application continues to be a serious challenge facing
the Egyptian law enforcement. The Egyptian legal framework has a direct impact on
the institutional setting designed by Egypt to address the required activities. I discuss
this institutional framework in Chapter Four, considering public institutions as well as
the role of civil society and international organizations in combating trafficking in
Egypt. Unfortunately, Egyptian institutional efforts continue to deal with the
trafficking of Eritreans as an illegal migration problem and exclude victims from
25
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12.
Id. at 14.
27
MEKONNEN AND ESTEFANOS, supra note 1.
26
11
protection. The last chapter evaluates current efforts to address the trafficking of
Eritreans in Egypt, highlighting the gaps in the Egyptian approach, and providing
feasible recommendations for Egypt and other stakeholders to effectively combat this
crime.
12
I.
Human Trafficking: Mapping the International Legal
Framework
The issue of human trafficking is not new to international law and has been addressed
on several occasions over the past century.28 In this chapter I present the current
international legal framework for combatting human trafficking enshrined in The
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children (hereafter the Trafficking Protocol) starting by defining the crime in
international law. Following the definition of the crime, I explain how the Trafficking
Protocol was built up on five previous international treaties addressing the same
problem. These treaties are: (1) The 1904 International Agreement for the
Suppression of White Slave Traffic; (2) The 1910 International Convention for the
Suppression of the White Slave Traffic; (3) The 1921 International Convention for the
Suppression of Traffic in Women and Children; (4) The 1933 International
Convention for the Suppression of the Traffic in Women of Full Age; and (5) The
Geneva Convention of 1949 for the Suppression of the Traffic in Persons and the
Exploitation of Others. Following this discussion, I consider other international legal
instruments that include provisions tackling human trafficking and add to the
international obligations of states to combat this crime.
A.
Defining Human Trafficking: The Trafficking Protocol
The crime of human trafficking has been historically approached from different
angles and the definition of the crime varied accordingly. The crime is generally
defined as an act carried out using specific means for the purpose of exploiting other
human beings. This involves coercing victims to carry out activities such as
prostitution or forced labour.29 Acknowledging the gaps in previous international
28
CHRISTAL MOREHOUSE, COMBATING HUMAN TRAFFICKING POLICY GAPS AND HIDDEN POLITICAL
AGENDAS IN THE USA AND GERMANY 25 (2009),
http://public.eblib.com/EBLPublic/PublicView.do?ptiID=750377 (last visited May 13, 2014).
29
UNITED NATIONS OFFICE ON DRUGS AND CRIME, GLOBAL REPORT ON TRAFFICKING IN PERSONS:
2012. 16 (2012).
13
treaties addressing human trafficking;30 the United Nations General Assembly
established a committee in 1998 tasked with drafting a new treaty to fight
international organized crime.31 This committee eventually produced the 2000 United
Nations Convention against Transnational Organized Crime, supplemented by two
protocols: the Protocol against the Smuggling of Migrants by Land, Sea and Air; and
the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children (the Trafficking Protocol) which entered into force in 2003 after
being ratified in record time.32 According to the Trafficking Protocol definition:
‘Trafficking in persons’ shall mean the recruitment, transportation,
transfer, harboring or receipt of persons, by means of the threat or use of
force or other forms of coercion, of abduction, of fraud, of deception, of
the abuse of power or of a position of vulnerability or of the giving or
receiving of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labour
or services, slavery or practices similar to slavery, servitude or the removal
of organs. 33
The definition of the crime considers it as a form of modern day slavery. It is
estimated that globally between 600,000 to 800,000 persons become victims of
trafficking annually.34 The ILO estimates that 20.9 million people are victims of
trafficking globally.35 It is a profitable business. Another quantitative study
commissioned by the ILO in 2005 estimated annual profits from exploiting forced
labour to be US$44.3 billion, of which trafficking victims provide US$31.6 billion.36
30
These treaties are: (1) The 1904 International Agreement for the Suppression of White Slave Traffic;
(2) The 1910 International Convention for the Suppression of the White Slave Traffic; (3) The 1921
International Convention for the Suppression of Traffic in Women and Children; (4) The 1933
International Convention for the Suppression of the Traffic in Women of Full Age; and (5) The Geneva
Convention of 1949 for the Suppression of the Traffic in Persons and the Exploitation of Others.
31
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE PROTOCOLS THERETO (2002).
32
A general understanding to the gravity of the problem led to the convention being swiftly ratified by
40 countries to enter into force in 2003. See UNITED NATIONS OFFICE ON DRUGS AND CRIME, supra
note 29 at 17, 81.
33
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE PROTOCOLS THERETO (2002).
Art. 3.
34
KONYVES-KOLONICS, supra note 23 at 101.
35
UNITED NATIONS OFFICE ON DRUGS AND CRIME, supra note 29 at 1.
The same study adds two alarming notes: one indicating that these estimates are
based on very ‘conservative’ data, while the other is that 75% of the profit is made
36
14
Disturbing statistics by the UN Office on Drugs and Crime (UNODC) show that from
2003 to 2006, 20 per cent of those trafficked were children. This percentage became
27 between the years 2007 to 2010;37 and further to 33 percent in 2014.38 In the
meantime, a UNODC Report highlights that the rates of convictions for criminals
continue to be very low.39 As with all crimes, these statistics represent accessible
information only and gathering data on such criminal activities is very complicated.40
These statistics raise questions about the effectiveness of the current international
legal framework on trafficking.
B.
Precursors of the Trafficking Protocol
Before the establishment of the League of Nations, there were already multilateral
treaties aimed at curbing human trafficking; although mainly Eurocentric and with
very narrow scope.41 These treaties were the 1904 International Agreement for the
Suppression of White Slave Traffic and the 1910 International Convention for the
Suppression of the White Slave Traffic. Two other treaties came after the League of
Nations: the 1921 International Convention for the Suppression of Traffic in Women
and Children and the 1933 International Convention for the Suppression of the Traffic
in Women of Full Age. After the end of the Second World War another treaty came
about at a time when the UN was gathering momentum for a strong human rights
regime. This was the Geneva Convention of 1949 for the Suppression of the Traffic in
Persons and the Exploitation of Others. The 1949 treaty remained in place for 50
years before it was reinforced by the 2000 United Nations Protocol to Prevent,
Suppress, and Punish Trafficking in Persons Especially Women and Children,
supplementing the 2000 United Nations Convention against Transnational Organized
inside industrialized states who ironically claim that they deploy all that is necessary
to stop human trafficking and put blame on developing countries where trafficking
victims frequently originate. PATRICK BELSER ET AL., FORCED LABOUR AND HUMAN
TRAFFICKING: ESTIMATING THE PROFITS 17–18 (International Labour Office) (2005); David A.
Feingold, Human Trafficking, FOREIGN POLICY 26–32 (2005)
37
UNITED NATIONS OFFICE ON DRUGS AND CRIME, supra note32 at 1; See SHELLEY, supra note2 at 6.
38
UNITED NATIONS, supra note 3 at 5.
39
UNITED NATIONS OFFICE ON DRUGS AND CRIME, supra note 29 at 1.
40
Id. at 16.; In the past two decades, the numbers of victims more than doubled. SHELLEY, supra note2
at 4.
41
MOREHOUSE, supra note 28 at 26.
15
Crime. This Trafficking Protocol is considered to be the current cornerstone for the
international legal framework for combatting the crime.
Guided by the in-depth analysis conducted by Morehouse42 on the similarities and
differences between these six international treaties, I explain how the Trafficking
Protocol added to the international legal framework and how it bridged several gaps
in its predecessors. The Trafficking Protocol serves as a culmination of the previous
attempts for drafting a comprehensive treaty to address the crime.
1. From an ethnicity perspective:
The first two international treaties addressing human trafficking (1904-1910) were
Eurocentric with clear reference to the supremacy of the white race.43 Both treaties
criminalize all forms of trade in victims of white race only, referring mainly to
protecting European citizens whether in Europe or any of the colonies of the
signatories. Along with the establishment of the League of Nations, and hence the
greater involvement of world states in international relations, the preference for the
white race had to come to an end. All of the subsequent trafficking treaties had no
provisions that specifically focused on a particular race.
2. Being age specific.
It was only the 1904 treaty that excluded the protection of children as it was focused
mainly in protecting white women. Therefore, the following 1910 treaty assured the
inclusion of female minors (under 20 years) along with adult women.44 The 1921,
1933, and 1949 treaties did not have a clear age dimension and focused on defining
the victim regardless of his\her age. However, the Trafficking Protocol included in its
42
Id. at See 27–70.
The 1904 agreement only obligates the contracting states which are all European States and their
dominions to combat the “White” Slave Traffic. See The International Agreement for the Suppression
of the “White Slave Traffic,” 18 May 1904, 35 Stat. 1979, 1 L.N.T.S. 83, entered into force 18 July
1905., , http://www1.umn.edu/humanrts/instree/whiteslavetraffic1904.html (last visited Sep 10, 2014);
the following convention also only focused on the "White" Slave Traffic crime. See 1910 International
Convention for the Suppression of the White Slave Traffic, ,
http://www1.umn.edu/humanrts/instree/whiteslavetraffic1910.html (last visited Dec 2, 2014).
44
Article 2 of the Convention covers women under the age of 20; while Article 3 covers women above
that age. 1910 Convention, supra note 43.
43
16
definition of victims all those children who are subjected to the act of trafficking with
the purpose regardless of the means deployed.45
3. From a gender perspective
Human trafficking was narrowly understood in the first half of the twentieth century
as a problem of sex trafficking. The four early treaties (1904, 1910, 1921, and 1933)
focused exclusively on combatting the trafficking of women for sexual purposes. The
1949 treaty was a turning point in this regard; it expanded the definition of human
trafficking to include male victims. It went further to disregard gender and state that
any trafficking victim requires protection and support.46 The Trafficking Protocol’s
articles all apply regardless of gender. However, the title mentions ‘Especially for
Women and Children’, acknowledging the special vulnerability of these two groups.47
4. Geographic application:
Prior to the 1949 treaty, all the treaties considered human trafficking as a problem
threatening Europe only. The countries involved in negotiating and signing these
treaties were either European countries or their colonies. This shows how early
international lawmakers assumed that other parts of the world had no rights to be
protected from human trafficking.48 The 1949 treaty was the first one acknowledging
the importance of addressing the problem outside Europe as well.49
5. On the position of internal human trafficking:
The issue of internal human trafficking is a source of confusion on both the domestic
and international levels. Only the 1904 and 1933 treaties clearly stipulated that
identifying a victim of trafficking is conditioned by crossing international borders,
hereby defining the human trafficking crime as a transnational crime only. 50
45
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note19. Art. 3(a)(c)(d).
MOREHOUSE, supra note 28 at 31.
47
This confusion on the gender aspect of the crime has had its toll on the process of designing national
laws to help combatting the crime. Countries that have already drafted anti-trafficking national laws
have been confused in this matter, some of them focusing only on women. Id. at 31.
48
Id. at 33.
49
Id. at 34.
50
Final Protocol (D) clarifies that crimes that do not involve border crossing are not covered by the
convention; "detention, against her will, of a woman or girl in a brothel could not, in spite of its
gravity, be dealt with in the present Convention, seeing that it is governed exclusively by internal
legislation". International Agreement for the Suppression of the “White Slave Traffic,” 18 May 1904,
46
17
However, Article 3 of the current Trafficking Protocol makes no reference to border
crossing as an aspect of the human trafficking crime definition.51 The UNODC
website further explains that the definition also includes internal human trafficking
crimes.52 Nevertheless, Article 4 of the same Protocol states that the scope of the
Protocol only covers such crimes that are committed transnationally.53 This creates
confusion whether the drafters of the Trafficking Protocol intended only to cover the
transnationally committed crimes, or all forms including internal trafficking. This
issue has repercussions on the process of identifying the victims and offering support
and rights.
6. Inclusion of different forms of human trafficking other than forced sexual
labour:
The inclusion of different forms of human trafficking is considered to be an
improvement brought about by the Trafficking Protocol, as all its predecessors
focused only on abolishing sexual exploitation. The Trafficking Protocol gives more
space for inclusion of other forms of trafficking including forced labour and organ
theft as per Article 3.54
7. Agency for identifying victims:
35 Stat. 1979, 1 L.N.T.S. 83, entered into force 18 July 1905., supra note46,; Article 1 of the 1933
Convention covers only the crimes 'carried out in another country'. League of Nations, 1933
INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE TRAFFIC IN WOMEN OF
FULL AGE, https://www.oas.org/juridico/mla/en/traites/en_traites-inter-women_1933.pdf (last visited
Sep 10, 2014).
51
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note5, Art 3.
52
“Once initial control is gained, victims are moved to a place where there is a market for their services
and where they often lack language skills and other basic knowledge that would enable them to seek
help. Destinations are commonly in foreign countries, but that is not always the case – international
borders do not have to be crossed. Upon arrival at their destination, victims are forced to work in
difficult, dangerous and usually unpleasant occupations, such as prostitution, the production of child
pornography or general labour, in order to earn profits for the traffickers.” UN Office on Drugs and
Crime, SUMMARY PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS,
ESPECIALLY WOMEN AND CHILDREN, http://cjei.org/publications/IAWJ%20Conference/ProtocolSummary.doc (last visited Sep 10, 2014).
53
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 31. Article 4 states
that “This Protocol shall apply, except as otherwise stated herein, to the prevention, investigation and
prosecution of the offences established …, where those offences are transnational in nature and involve
an organized criminal group, as well as to the protection of victims of such offences.”
54
Article 3 states that “Exploitation shall include, at a minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs.” Id. Art. 3.
18
As one of the main pillars for combatting trafficking, all the six treaties covering
human trafficking identified the agency with responsibility for identifying victims.55
The 1904 Treaty assigned agency to the state where the victim is found.56 The 1921
Treaty specifically placed this responsibility on the immigration and emigration
authorities of the countries;57 showing the tendency towards interpreting human
trafficking as a policing problem, shifting the focus to pursuing criminals rather than
healing victims. The 1933 Treaty was a prosecution-oriented agreement and had no
provisions for victim identification.58 The 1949 c=Convention in Article 17 reiterated
the responsibility of both the immigration and emigration authorities of the
contracting parties.59 The Trafficking Protocol puts the responsibility on the
immigration and border control authorities in Article 10.60
8. Rehabilitation of victims:
All six international treaties have put responsibility for the rehabilitation of victims on
the shoulders of the government. However, the scope of rehabilitation services has
55
MOREHOUSE, supra note 28 at 41–42.
Article 2 of the 1904 treaty stated that: “Each of the Governments undertakes to have watch kept,
especially in railway station, ports of embarkation, and en route, for persons in charge of women and
girls destined for an immoral life.” International Agreement for the Suppression of the “White Slave
Traffic,” 18 May 1904, 35 Stat. 1979, 1 L.N.T.S. 83, entered into force 18 July 1905., supra note 43.
57
1921 INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE TRAFFIC IN
WOMEN AND CHILDREN, , http://treaties.un.org/doc/Treaties/1950/04/19500424%201031%20PM/Ch_VII_2p.pdf (last visited Sep 10, 2014). Art. 7 mentions that “The High Contracting
Parties undertake in connection with immigration and emigration to adopt such administrative and
legislative measures as are required to check the traffic in women and
children.”
58
MOREHOUSE, supra note 28 at 42.
59
League of Nations, supra note 50. Article 17 states that: “The Parties to the present Convention
undertake, in connection with immigration and emigration, to adopt or maintain such measures as are
required, … to check the traffic in persons
of either sex for the purpose of prostitution. In particular they undertake: To make such regulations as
are necessary for the protection of immigrants or emigrants, and in particular, women and children,
both at the place of arrival and departure and while en route; … To take appropriate measures to ensure
supervision of railway stations, airports, seaports and en route, and of other public places, in order to
prevent international traffic in persons for the purpose of prostitution; To take appropriate measures in
order that the appropriate authorities be informed of the arrival of persons who appear, prima facie, to
be the principals and accomplices in or victims of such traffic.”
60
Article 10 states that “Law enforcement, immigration or other relevant authorities of States Parties
shall, as appropriate, cooperate with one another by exchanging information, in accordance with their
domestic law, to enable them to determine: (a) Whether individuals crossing or attempting to cross an
international border with travel documents belonging to other persons or without travel documents are
perpetrators or victims of trafficking in persons; (b) The types of travel document that individuals have
used or attempted to use to cross an international border for the purpose of trafficking in persons; and
(c) The means and methods used by organized criminal groups for the purpose of trafficking in
persons, including the recruitment and transportation of victims, routes and links between and among
individuals and groups engaged in such trafficking, and possible measures for detecting them.” CENTRE
FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 31. Art. 10.
56
19
varied from one treaty to another. The 1904 Convention offered the victims the
possibility of housing and time to recover from their trauma. The 1921 Convention
only made one reference to the rehabilitation of victims in Article 7.61 There was no
description of what type of rehabilitation would be offered for victims other than
utilizing general terms such as accommodation and assistance without identifying
time frames or the quality of such services. The 1949 Convention only mentioned the
rehabilitation of victims in articles 16 and 19. Article 16 was vague enough to allow
the contracting parties leeway in deciding the measures of rehabilitation offered to
victims;62 Article 19 mentions that this rehabilitation was temporary until the victim
was repatriated back to her home country. Furthermore, the rehabilitation of victims
was only to serve those who were victims of sexual exploitation, excluding all other
forms of trafficking.63
The Trafficking Protocol comes with an elaborate Article 6 that details all of the
rehabilitation services that should be provided to the victims of trafficking. Article 6
covers a variety of rights including a state’s responsibility to ensure the physical and
legal safety of the victims; the confidentiality of legal proceedings relating to the
crime; and the provision of psychological and social recovery services. The same
article requires the involvement of NGOs and other civil society experts. The article
further details provisions of proper housing, medical services, material assistance,
Article 7 states that “The High Contracting Parties…arrange for the exhibition, in railway stations
and in ports, of notices warning women and children of the danger of the traffic and indicating the
places where they can obtain accommodation and assistance.” 1921 INTERNATIONAL
CONVENTION FOR THE SUPPRESSION OF THE TRAFFIC IN WOMEN AND CHILDREN,
supra note146.
62
Article 16 states that “The Parties to the present Convention agree to take or to encourage, through
their public and private educational, health, social, economic and other related services, measures for
the prevention of prostitution and for the rehabilitation and social adjustment of the victims of
prostitution and of the offences referred to in the present Convention.” 1949 CONVENTION FOR
THE SUPPRESSION OF THE TRAFFIC IN PERSONS AND OF THE EXPLOITATION OF THE
PROSTITUTION OF OTHERS,
http://www.ohchr.org/Documents/ProfessionalInterest/trafficpersons.pdf (last visited Sep 10, 2014).
63
Article 19 states that “The Parties to the present Convention undertake, in accordance with the
conditions laid down by domestic law and without prejudice to prosecution or other action for
violations thereunder and so far as possible:
(1) Pending the completion of arrangements for the repatriation of destitute victims of international
traffic in persons for the purpose of prostitution, to make suitable provisions for their temporary care
and maintenance;” Id.
61
20
education, employment prospects, and a legal capacity to pursue litigation for
obtaining compensation from the perpetrators.64
9. Providing legal residence to victims
The legal residence of victims is at the heart of any effective attempt to protect
victims of trafficking. In most cases, victims are lured by false promises of a better
life in a new country. Other victims had contracted a smuggler to take them to another
country before falling victim to trafficking while en-route. The 1904 Convention only
mentioned the voluntarily repatriation of victims back to their home countries,
without mentioning any possibility of obtaining a legal residence in the country where
victims were identified.65 The 1949 Convention conditioned the victim’s legal
residence on the duration of the investigation of the crime hence, assuming the return
of the victims to their home countries at the end of the investigation.66The same
Convention left the issue of providing legal residence to victims to be handled by the
national laws of the contracting parties.67 The Trafficking Protocol states clearly that
providing legal residence to victims is at the discretion of the governments according
to their national laws.68
10. International Cooperation:
All six treaties covering human trafficking had provisions on international
cooperation. It was clear from the beginning that this was a crime that would require
international cooperation in order to restrain it. However, the nature of this
cooperation was expressed differently in each treaty. The first three Conventions
(1904, 1910, and 1921) had general provisions covering international cooperation.69
64
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 31. Art. 6.
International Agreement for the Suppression of the “White Slave Traffic,” 18 May 1904, 35 Stat.
1979, 1 L.N.T.S. 83, entered into force 18 July 1905., supra note 43. Art. 3.
66
1949 CONVENTION FOR THE SUPPRESSION OF THE TRAFFIC IN PERSONS AND OF THE
EXPLOITATION OF THE PROSTITUTION OF OTHERS, supra note67, Art. 5; MOREHOUSE, supra
note2 at 49.
67
MOREHOUSE, supra note 28 at 50.
68
Article 7 of the 2000 Protocol states that “(1) In addition to taking measures pursuant to article 6 of
this Protocol, each State Party shall consider adopting legislative or other appropriate measures that
permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in
appropriate cases. (2) In implementing the provision contained in paragraph 1 of this article, each State
Party shall give appropriate consideration to humanitarian and compassionate factors.” CENTRE FOR
INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 31. Art. 7.
69
See International Agreement for the Suppression of the “White Slave Traffic,” 18 May 1904, 35 Stat.
1979, 1 L.N.T.S. 83, entered into force 18 July 1905., supra note145. Art. 1; See also 1921
65
21
The 1933 Convention, being a prosecution-oriented Convention, increased the level of
international cooperation by adding the exchange of records of convictions and any
other useful information.70 In its Article 13, the 1949 Convention regulated the
agencies of international cooperation including the judicial authorities, the Ministries
of Justice, and diplomatic and consular cooperation.71 This was in addition to Article
15 which stipulated prosecution-related cooperation.72
The Trafficking Protocol Article 18 discusses detailed “mutual legal assistance”
which provides a framework for legal cooperation.73 Furthermore, the Trafficking
Protocol lists in Article 10 the different forms of cooperation between state parties in
the form of information exchange. This cooperation is conditioned as being
“appropriate” and in accordance with relevant domestic laws.74 This creates a huge
gap in the article especially because cooperation in domestic criminal investigations
often gives rise to confidentiality and other domestic legal rights. Other forms of
cooperation in the Trafficking Protocol include cooperation with NGOs when it
comes to public campaigning for the prevention human trafficking.75
C.
Other international treaties addressing human trafficking
There are several provisions in other international legal instruments that address
human trafficking. These include multilateral human rights law treaties. It is first
INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE TRAFFIC IN WOMEN
AND CHILDREN, supra note146. Art. 3.
70
Article 3 of the 1933 convention states that “Records of convictions, together with any useful and
available information with regard to the offender, such as his civil status, description, finger-prints,
photograph and police record, his method of operation, etc. Particulars of any measures of refusal of
admission or of expulsion which may have been applied to him.”, League of Nations, supra note 50.
Art. 3.
71
1949 CONVENTION FOR THE SUPPRESSION OF THE TRAFFIC IN PERSONS AND OF THE
EXPLOITATION OF THE PROSTITUTION OF OTHERS, supra note 62. Art. 13
72
Article 15 of the 1949 Convention states that “To the extent permitted by domestic law and to the
extent to which the authorities responsible for the services referred to in article 14 may judge desirable,
they shall furnish to the authorities responsible for the corresponding services in other States the
following information: (1) Particulars of any offence referred to in the present Convention or any
attempt to commit such offence; (2) Particulars of any search for any prosecution, arrest, conviction,
refusal of admission or expulsion of persons guilty of any of the offences referred to in the present
Convention, the movements of such persons and any other useful information with regard to them. The
information so furnished shall include descriptions of the offenders, their fingerprints, photographs,
methods of operation, police records and records of conviction.” Id. Art. 15
73
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 33.
74
Id. Article 10.
75
Id. Article 9.
22
important to note the relationship between the Trafficking Protocol and the Protocol
against the Smuggling of Migrants by Land, Sea and Air that supplements the
Convention against Transnational Organized Crime (hereafter the Smuggling
Protocol), which entered into force 28 January 2004. The importance of the
Smuggling Protocol lies in the fact that there is a thin line differentiating between the
crime of trafficking and that of smuggling. In many situations authorities identify a
crime of trafficking as that of smuggling. This matter leads to direct repercussions on
the rights entitled to the victims of the crime, and on the conviction of the
perpetrators. In order to clarify the relationship between the Trafficking Protocol and
the Smuggling Protocol; the definition of smuggling according to the Smuggling
Protocol states the following:
Smuggling of migrants shall mean the procurement, in order to obtain,
directly or indirectly, a financial or other material benefit, of the illegal
entry of a person into a State Party of which the person is not a national or
a permanent resident (UN General Assembly, 2000a).76
Compared to the definition of trafficking mentioned earlier in this chapter, it is
evident that smuggling does not involve the same means, or purpose, as human
trafficking.77 The crime of smuggling only involves the act of transferring a person
across borders illegally. Smuggling does not involve any use of allurement or
coercion, and does not involve any exploitation of the victim. On the other hand, in
practice, it is sometimes very difficult to differentiate between smuggling and
trafficking. In many cases victims voluntarily contract with a smuggler. They later
lose control over the situation and find themselves in a condition by which they forfeit
their freewill.78 This is commonly seen amongst Eritrean victims of trafficking in
Egypt.79 These potential victims in some cases initially contract a smuggler who turns
into a trafficker and exploits the victims in different ways.80
76
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 5. Article 3.
WELDEHAIMANOT, supra note 20 at 5.
78
RACHEL HUMPHRIS, REFUGEES AND THE RASHAIDA: HUMAN SMUGGLING AND TRAFFICKING FROM
ERITREA TO SUDAN AND EGYPT, 3 (2013).
79
See HUMPHRIS, supra note 14; WOMEN’S REFUGEE COMMISSION, supra note 14; MEKONNEN AND
ESTEFANOS, supra note 1; WELDEHAIMANOT, supra note 20.
80
MEKONNEN AND ESTEFANOS, supra note 1.
77
23
The Smuggling Protocol also provides a set of protection measures to the victims of
smuggling;81 however, the scope of these measures is narrower compared to the
protection measures provided in the Trafficking Protocol. Article 16(5) of the
Smuggling Protocol goes further in diminishing the rights of the victims to give
contracting states the right to detain the victims of smuggling.82
Another relevant international instrument that addresses human trafficking is the
Universal Declaration of Human Rights (UDHR) which prohibits all forms of
slavery.83 It also assures the equality of every person before the law,84 and secures the
right to work freely with favorable conditions.85 These provisions cut across the
definition of trafficking as they prohibit exploitation, which is the purpose behind
trafficking. The International Covenant on Economic, Social, and Cultural Rights
(ICESCR) also includes a provision for fair employment conditions.86
The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) also includes provisions for the protection of women’s health87 and
employment rights that guarantee equal opportunities with men.88 These provisions
correspond to the protection of victims as included in Article 6 of the Trafficking
Protocol.89 The Convention Against Torture (CAT) covers many aspects of the
81
Article 16 provides a set of protection and assistance measures. UN GENERAL ASSEMBLY, PROTOCOL
AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR, SUPPLEMENTING THE UNITED
NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME (2000),
http://www.refworld.org/docid/479dee062.html (last visited Feb 27, 2015).
82
Article 16(5) states that “In the case of the detention of a person who has been the object of conduct
set forth in article 6 of this Protocol, each State Party shall comply with its obligations under the
Vienna Convention on Consular Relations, where applicable, including that of informing the person
concerned without delay about the provisions concerning notification to and communication with
consular officers.” Id.
83
Refworld | Universal Declaration of Human Rights, REFWORLD,
http://www.refworld.org/docid/3ae6b3712c.html (last visited Aug 22, 2014). Art. 4.
84
Id. Art. 2.
85
Id. Art. 23.
86
See Philip Alston, United Nations’ Specialized Agencies and Implementation of the International
Covenant on Economic, Social, and Cultural Rights, The, 18 COLUM J TRANSNATL L 79 (1979).
87
Refworld | Convention on the Elimination of All Forms of Discrimination Against Women,
REFWORLD, http://www.refworld.org/docid/3ae6b3970.html (last visited Oct 9, 2014). Art. 12.
88
Id. Art. 13.
89
Article 6 covers the assistance to and protection of victims of trafficking in persons; it includes in
sub-article (3) providing victims with medical, psychological and material assistance. Sub-article (4)
pays attention to the age, gender and special needs of victims. This indicates a special attention to the
needs of women. PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS,
ESPECIALLY WOMEN AND CHILDREN (15 NOVEMBER 2000), A/RES/55/25, SUPPLEMENTING THE
24
punishments of perpetrators of torture; Articles 12 and 14 stipulate the rights of
victims in receiving compensation for what they have endured.90 These articles
correspond to Article 6(6) of the Trafficking Protocol which ensures that domestic
legal systems should allow for victims to be compensated.91 In addition, the
Convention on the Rights of the Child (CRC) includes many provisions covering the
right not to be trafficked,92 not to be economically abused,93 to be protected from
sexual exploitation,94 right to preserve the child’s identity and protect the child from
being illicitly transferred,95 and the right to be protected from forcible recruitment in
armed conflict.96
The International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families (ICRMW) goes a further step to cover compensation
not only for trafficked victims but for their families as well.97 Article 10 of ICRMW
also addresses protection against degrading treatment and torture, while a specific
provision combatting human trafficking is included in Article 11.98 Article 16(2) of
the same convention covers the responsibility of the state to provide protection to the
migrant worker from physical violence and physical injury.99 This specific article is
UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME, G.A. RES. 25, ANNEX II,
U.N. GAOR, 55TH SESS., SUPP. NO. 49, AT 60, U.N. DOC. A/45/49 (VOL. I) (2001), ENTERED INTO
FORCE DEC.25, 2003., 41–51.
90
Art.12, Art. 14. Refworld | Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, REFWORLD, http://www.refworld.org/docid/3ae6b3a94.html (last visited Oct
9, 2014).
91
Article 6(6) PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY
WOMEN AND CHILDREN (15 NOVEMBER 2000), A/RES/55/25, SUPPLEMENTING THE UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME, G.A. RES. 25, ANNEX II, U.N. GAOR,
55TH SESS., SUPP. NO. 49, AT 60, U.N. DOC. A/45/49 (VOL. I) (2001), ENTERED INTO FORCE DEC.25,
2003., supra note 89.
92
Refworld | Convention on the Rights of the Child, REFWORLD,
http://www.refworld.org/docid/3ae6b38f0.html (last visited Oct 9, 2014). Art. 35.
93
Id.Art. 32.
94
Id. Art 34.
95
Id. Art. 7,8, and 11.
96
Id. Art. 38.
97
Refworld | International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families, REFWORLD, http://www.refworld.org/docid/3ae6b3980.html (last visited
Oct 9, 2014).
98
This article states that “(1) No migrant worker or member of his or her family shall be held in slavery
or servitude. (2) No migrant worker or member of his or her family shall be required to perform forced
or compulsory labour.” Id. Art. 11.
99
Id. Art 16.
25
cross-cutting with Article 6 of the Trafficking Protocol under which the physical
safety of victims must be assured.100
The principle of non-refoulement as enshrined in customary international law adds
responsibility over contracting states not to forcibly return a person to a location
where their life or freedom is threatened for reasons of race, religion, nationality,
membership of a particular social group or political opinion. This principle is also
included in Article 33 of the 1951 Convention Relating to the Status of Refugees
(hereafter the 1951 Convention).101 This principle is relevant to the protection of
victims because in almost all of the cases, forced repatriation of a trafficking victim
would subject this person to possible persecution at the hands of the same criminals
who victimized him/her in the first place. Thus, states have a duty not to forcibly
return victims of trafficking.102 As explained by Raffaella Di Chio, trafficking victims
are protected on the grounds of being members of a particular social group in most of
the cases; or on the grounds of race if a specific minority group was targeted owing to
their vulnerable status in a country.103 Furthermore, according to Article 31 of the
1951 Convention, refugees should not be penalized for illegal border crossing and
residence.104
100
Article 6(5) states that: Each State Party shall endeavor to provide for the physical safety of victims
of trafficking in persons while they are within its territory. PROTOCOL TO PREVENT, SUPPRESS AND
PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN (15 NOVEMBER 2000),
A/RES/55/25, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL
ORGANIZED CRIME, G.A. RES. 25, ANNEX II, U.N. GAOR, 55TH SESS., SUPP. NO. 49, AT 60, U.N. DOC.
A/45/49 (VOL. I) (2001), ENTERED INTO FORCE DEC.25, 2003., supra note 89.
101
Article 33 states that “No Contracting State shall expel or return ("refouler") a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social group or political opinion.”
UN GENERAL ASSEMBLY, CONVENTION RELATING TO THE STATUS OF REFUGEES (1951),
http://www.refworld.org/docid/3be01b964.html (last visited Feb 28, 2015).
102
See Raffaella Di Chio, THE INTERNATIONAL PROTECTION OF VICTIMS OF TRAFFICKING
IN HUMAN BEINGS AND THE GENEVA CONVENTION RELATING TO THE STATUS OF
REFUGEES., 16 PAK. J. WOMENS STUD. (2009),
http://search.ebscohost.com/login.aspx?direct=true&profile=ehost&scope=site&authtype=crawler&jrnl
=10241256&AN=45411022&h=uQwaeOdTBxpX6m3Sy6ZHg1fwa27dkspa7NxL3xRB%2Bxn7qqSg
ONi%2BPxyi4%2BRxskSZ1JigzOCaXZn2Ua3Cn5XztQ%3D%3D&crl=c (last visited May 13, 2014).
103
Id. at 106–112.; Refworld | Guidelines on International Protection No. 7: The Application of Article
1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of
Trafficking and Persons At Risk of Being Trafficked, REFWORLD 12–14, http://www.refworld.org/cgibin/texis/vtx/rwmain?page=search&docid=443679fa4&skip=0&query=Guidelines%20on%20Internati
onal%20Protection%20No.%207 (last visited Nov 3, 2014).
104
Mary A. Young, The Smuggling and Trafficking of Refugees and Asylum Seekers: Is the
International Community Neglecting the Duty to Protect the Persecuted in the Pursuit of Combating
Transnational Organized Crime?, 27 SUFFOLK TRANSNATL REV 101–381, 111 (2003).
26
The next chapter describes the trafficking of Eritreans in Egypt. Following from this,
Chapter Three describes the legal approach adopted by the Egyptian authorities,
which is heavily influenced by the Trafficking Protocol.
27
II.
Human Trafficking of Eritreans in Egypt
This chapter describes the reasons Eritreans flee their home country and how they fall
victim to trafficking. The chapter then highlights several obstacles to mapping the
crime in Egypt.
A. Overview
The issue of smuggling people from Sub-Saharan Africa through Egypt, across the
Mediterranean, into Europe and beyond is not a new thing. This route has been sought
by many people over a large span of time.105 People have always sought to emigrate
in pursuit of a better life. One of the negative impacts of colonization has been ideas
of cultural domination that encourages sub-Saharan Africans to believe that only in
the West exists a decent life worth aspiring to.
Eritreans sought to illegally cross borders into Sudan and moving onwards through
Libya before boarding illegal vessels across the Mediterranean Sea to Europe.
Overtime, however, tight policing by Libya in collaboration with Italy made this route
unfavorable. 106 Therefore, the shift towards illegally crossing the Egyptian Sinai into
Israel became preferred.107
Smuggling Eritreans from Egypt to Israel was first reported in 2006.108 However, the
issue of travelling illegally and contracting with smugglers took a dramatic up-turn
after the Egyptian revolution broke out on 25 January 2011. The country fell into
chaos and Egyptian border patrols’ weakened. Suddenly reports started surfacing
105
WELDEHAIMANOT, supra note 20 at 6.
MEKONNEN AND ESTEFANOS, supra note 1 at 13.
107
This route from Kassala to Israel required smugglers to guide the person through a 3000 km
journey. Karen Jacobsen, Sara Robinson & Laurie Lijnders, Ransom, Collaborators, Corruption: Sinai
Trafficking and Transnational Networks, , 5 (2013),
http://www.globalinitiative.net/dev/download/human-trafficking/subsaharanafrica/Feinstein%20International%20Center%20%20A%20Case%20Study%20of%20the%20Eritrean%20Migration%20System%20from%20Eritrea%
20to%20Israel%20Aug%202013.pdf (last visited May 13, 2014).
108
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 22.
106
28
from different sources that not only was smuggling of illegal immigrants taking place
in Egypt; in fact it was a wide-scale and full blown process of human trafficking.109
The perpetrators of human trafficking in the Sinai have been identified. As the tribe in
control of east Sudan, the Rashaida tribe traffickers have been operating continuously
from the borders with Eritrea to the south of Egypt.110 Upon crossing the borders to
Egypt, some members of the Sawarka Bedouins of Egypt – specifically in the Sinai have deployed heavy resources in order to extort money out of their victims.
Otherwise they trade in the victims’ organs, in some cases kill them, or leave them to
die in the desert.111
It has been reported that most of the victims of trafficking in Egypt are Eritreans who
have been either lured by smugglers turned traffickers to cross Sudan and Egypt all
the way to Israel, or have been actually kidnapped from refugee camps in Sudan and
forced to travel to Egypt.112 In Egypt they are sold to other Egyptian tribes who
further force the victims to pay large sums of money in exchange for release,113 or
forcibly remove body organs and leave the victim to die.114 There are other
testimonies that show that victims are forced to engage in involuntary labour in
Hotline for Migrant Workers, supra note 20; “Stand in the Sinai” now online, ,
http://thecnnfreedomproject.blogs.cnn.com/2012/09/26/stand-in-the-sinai-now-online/ (last visited Oct
8, 2014); Sinai Perils, supra note 20; Laura King, Rights group: Egypt turns blind eye to human
trafficking in Sinai, LOS ANGELES TIMES, February 11, 2014,
http://www.latimes.com/world/worldnow/la-fg-wn-rights-group-egypt--trafficking-sinai-20140211story.html (last visited Oct 8, 2014); HUMPHRIS, supra note 14; WELDEHAIMANOT, supra note 20;
Harriet Sherwood, Hundreds of Eritreans enslaved in torture camps in Sudan and Egypt, THE
GUARDIAN, February 11, 2014, http://www.theguardian.com/world/2014/feb/11/eritreans-enslavedtraffickers-sudan-egypt-torture-camps (last visited Oct 8, 2014); REISEN ET AL., supra note 14;
Egypt/Sudan: Traffickers Who Torture | Human Rights Watch, ,
http://www.hrw.org/news/2014/02/11/egyptsudan-traffickers-who-torture (last visited Oct 8, 2014);
MEKONNEN AND ESTEFANOS, supra note 1; Egypt: “In Sinai, I saw hell”; refugees are easy prey for
brutal human traffickers, THE WASHINGTION TIMES,
http://www.washingtontimes.com/news/2013/jul/21/in-sinai-i-saw-hell-refugees-are-easy-prey-for-bru/
(last visited Oct 8, 2014); Egypt: Human Trafficking in Sinai, ,
http://thinkafricapress.com/egypt/human-trafficking-sinai-eritrea-israel-sudan (last visited Oct 8, 2014);
Fishbein, supra note 20; Laurie Lijnders, supra note 14.
110
HUMPHRIS, supra note 14 at 10.
111
Id. at 10.
112
WOMEN’S REFUGEE COMMISSION, supra note 14 at 17; MEKONNEN AND ESTEFANOS, supra note 1 at
13; SHELLEY, supra note 10 at 267.
113
WELDEHAIMANOT, supra note 20 at 7.
114
DEATH IN THE DESERT, supra note 13.
109
29
slavery-like conditions.115 The traffickers set varying ransom payments in exchange
for release.116
Eritreans victims usually encounter the traffickers in Sudan for the first time.117 Either
the Eritreans search for the smugglers directly themselves out of eagerness to leave
quickly and arrive at their ideal destinations, or are surrendered to them through
corrupt local authorities. In its 2014 report, Human Rights Watch documented eight
cases of victims who had been handed over to the traffickers directly by Sudanese
police.118 Others are kidnapped directly from one of the many insecure Eritrean
refugee camps that are located in the east of Sudan.119 Some testimonies also indicate
that some of the refugees themselves inside the camps in East Sudan become
trafficking brokers themselves; owing to the economic hardship endured in the camp,
during long sojourns there.120
The number of trafficked Eritrean victims who were reported by UNHCR peaked in
2012.121 Victims started reporting various abuses committed on the road: torture,
extortion of large sums of money to continue the journey, rape,122 organ theft,123 and
in some cases murder of those who did not comply. Documented testimonials of
victims124 support the contention that the Bedouins requested ransom payments
exceeding 30,000 USD in many cases, and possessed large stocks of weaponry,
manpower, and enough cash for bribing authorities frequently.125 UNHCR estimates
that victims are held captive from six months to more than a year.126 Furthermore,
traffickers are able to match all the challenges posed by state border controls should a
115
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 35; information shows
that Eritrean victims of trafficking are forced to work in marijuana fields in north Sinia. MEKONNEN
AND ESTEFANOS, supra note 1 at 14.
116
One report mentioned that traffickers discriminate in the ransom requests offering lower ransoms for
Muslims against exaggerated sums for releasing Christians. WELDEHAIMANOT, supra note 20 at 9.
117
HUMPHRIS, supra note 14 at 7.
118
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 25.
119
Id. at 12.
120
Id. at 14.
121
UNHCR CAIRO, supra note 14.
122
WELDEHAIMANOT, supra note 20 at 7.
123
A car crash in Sinai in 2011 revealed evidence of a death of a doctor holding iceboxes including
human organs. Saleh, Amal, supra note 13.
124
See Hotline for Migrant Workers, supra note 20.
125
WELDEHAIMANOT, supra note 20 at 9; MEKONNEN AND ESTEFANOS, supra note 1 at 14.
126
Confidential interviews conducted by UNHCR Cairo in 2012, 2013.
30
new system be implemented. In Sinai, there have been some local attempts made by
the Bedouin community to curtail the human trafficking of Eritreans.127 Bedouin
leaders have attempted to dissuade the traffickers from resuming this business for it
defames Islam and is against Islamic Shariah law. However, these efforts lack a
strong security presence and support for the task and therefore are ineffective.128
As mentioned above, the reasons behind the growth of human trafficking networks in
the region was that the Egyptian Revolution had further weakened the government. In
the meantime, the measures taken by Israel to fortify its borders with Egypt have led
many to take more desperate measures to reach Israel, and traffickers have eagerly
stepped in to fill this gap. UNHCR statistics show that the number of Eritreans
illegally crossing the borders from Egypt to Israel increased from 1,348 in 2006 to
17,175 in 2011.129 In 2012, Israel passed a controversial law by amending the 1954
Prevention of Infiltration Law, by which all those who crossed the borders into Israel
irregularly were considered to be “infiltrators” that could harm the Israeli state,
allowing the authorities to detain them for three years before making a final decision
to deport them back to their respective countries.130 This law does not differentiate
between refugees and economic migrants, and does not account for any special
considerations for victims of trafficking.131 Even worse, in 2011 Israel started
constructing a fence along the border with Egypt.132 In 2012, it was noted that the
number of smuggled illegal migrants dropped from 1,706 in May to 289 in July.133 It
is therefore easy to understand that smugglers would seek different sources of income
if the borders were blocked; and that is one of the factors that have contributed to
smuggled illegal migrants becoming victims of human trafficking.
On the other side of the border, Egypt did not stand still. In August 2012, the
Egyptian military launched a military operation called Operation Eagle with the
127
Saleh, Amal, supra note 13.
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 41–42; HUMPHRIS, supra
note 14 at 11.
129
HUMPHRIS, supra note 14 at 1. Data provided by UNHCR Israel.
130
All this law was struck down twice by the Supreme Court; however, in vain. Refworld | Smuggling
and Trafficking from the East of Africa, supra note 15 at 6.
131
HUMPHRIS, supra note 14 at 4.
132
Jacobsen, Robinson, and Lijnders, supra note 107 at 7.
133
HUMPHRIS, supra note 14 at 5. Data provided by Saharonim prison authorities in Israel.
128
31
objective of eliminating extremist strongholds in Sinai, enhancing border security, and
preventing smuggling.134 Since then the numbers of reported victims of trafficking
have dropped sharply in 2013 and further in 2014,135 indicating either that different
routes are being sought by traffickers or that the effectiveness of the operation to
eliminate the activity is becoming more successful. Nevertheless, a human rights
activist in Sinai informed Human Rights Watch that around 140 Eritreans were
rounded up by the Egyptian military in 2013 and were transferred to prisons. It was
uncertain whether the Egyptian government deported them to Eritrea or what actually
happened to them.136 In 2013, UNHCR also observed a change of route from Sinai to
Libya, and more attempts to illegally exit Egypt by sea towards Italy and Greece. 137
This however, does not negate the fact that the problem continues to persist and
victims also have been reported in the Sinai in 2014.138
B. Push Factors
There are a number of push factors that drive individuals to approach traffickers
voluntarily, whether desperation to leave their countries of origin, or hoping to seek
better opportunities in Western Europe or Israel. Eritreans find no other way but to
resort to smugglers in order to escape the harsh living conditions in their home
country in pursuit of an assumed better life in Europe.139 Eritreans escape from a
persecutory regime.140 A devastating war from 1998 to 2000 between the Eritrea and
Ethiopia that ended with around 100,000 fatalities and a stalemate further added to the
impoverishment of many citizens of both countries.141
It has been observed that children from the age of 10 opt to escape from the prolonged
Eritrean compulsory national military service that has been reported to recruit as
Egyptian armed forces announce results of “Operation Sinai”, supra note 18.
United States Department of State, 2014 TRAFFICKING IN PERSONS REPORT REFWORLD 163 (2014),
http://www.refworld.org/docid/53aaba0114.html (last visited Jan 29, 2015).
136
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 64.
137
UNHCR CAIRO, supra note 14.
138
United States Department of State, supra note 135 at 163.
139
SHELLEY, supra note 10 at 267.
140
See HUMAN RIGHTS WATCH (ORGANIZATION), SERVICE FOR LIFE: STATE REPRESSION AND
INDEFINITE CONSCRIPTION IN ERITREA (2009); MEKONNEN AND ESTEFANOS, supra note 1 at 5;
Jacobsen, Robinson, and Lijnders, supra note 107 at 4.
141
MEKONNEN AND ESTEFANOS, supra note 1 at 5.
134
135
32
young as the age of 15 years.142 Escaping national military service and traveling
abroad in pursuit of better opportunities adds a social pressure on youth which has
created a large wave of immigrants that later become prey to traffickers.143 Some
Eritreans also escape from religious persecution.144 This has led UNHCR to
recommend that almost all Eritreans who escape from the country be granted refugee
status under the 1951 Refugee Convention.145
Furthermore, Eritrea suffers from UN imposed sanctions due to its commonly known
support for the Islamic Mujahideen group in Somalia known as Al-Shabab.146 This
has led to a prevailing state of a frail economy and a very low standard of living for
Eritreans. An active Eritrean Diaspora that wires remittances back to Eritrea
amounting to 30% of the country’s GDP adds to a perception that living outside
Eritrea will lead to a better and wealthy life.147
The above mentioned push factors have led many Eritreans to escape from their home
countries seeking asylum in neighboring Sudan. UNHCR reports around 109,594
Eritrean refugees in Sudan as of November 2014.148 They find themselves
unwelcomed by a Sudanese regime that is unwilling to offer much for them and
considers them to be economic migrants.149 Adding to the complexity of their
situation in Sudan, the Eritrean refugee groups are often hostile towards each other
WOMEN’S REFUGEE COMMISSION, supra note 14 at 9; UNHCR, REFWORLD | UNHCR ELIGIBILITY
GUIDELINES FOR ASSESSING THE INTERNATIONAL PROTECTION NEEDS OF ASYLUM-SEEKERS FROM
ERITREA REFWORLD 16–17, http://www.refworld.org/docid/4dafe0ec2.html (last visited May 17,
2014).
143
A survey of 105 Eritrean minors in Sudanese camps has shown that social pressure to join relatives
abroad is the force deriving more than half of this group to escape from the country. WOMEN’S
REFUGEE COMMISSION, supra note 14 at 10 and 13; MEKONNEN AND ESTEFANOS, supra note 1 at 6 &
12.
144
Muslims in Eritrea complain of being unable to practice Islam freely; while Protestant Eritreans
were previously systematically targeted by the Eritrean regime. WOMEN’S REFUGEE COMMISSION,
supra note 14 at 10; UNHCR, supra note 142.
145
UNHCR, supra note 142 at 9.
146
HUMPHRIS, supra note 19 at 2.
147
GAIM KIBRAEB, THE ERITREAN DIASPORA, THE WAR OF INDEPENDENCE, POST-CONFLICT
RECONSTRUCTION AND DEMOCRATIZATION, 97-116, IN JOHANSSON DAHRE SIRC CONFERENCE ON THE
HORN OF AFRICA ULF ET AL., THE ROLE OF DIASPORAS IN PEACE, DEMOCRACY AND DEVELOPMENT IN
THE HORN OF AFRICA: [PROCEEDINGS OF THE 5TH SIRC CONFERENCE ON THE HORN OF AFRICA,
AUGUST 19-20, 2006] (2007).
148
Sharp increase in number of Eritrean refugees and asylum-seekers in Europe, Ethiopia and Sudan,
UNHCR, http://www.unhcr.org/5465fea1381.html (last visited Jan 25, 2015).
149
Sudan forces the refugees to remain in camps under a strict movement policy without allowing
refugees any right to work. WOMEN’S REFUGEE COMMISSION, supra note 14 at 8.
142
33
owing to the ongoing hatred between the two countries. The conditions of Eritrean
refugees in Ethiopia are not very different, with around 106,859 Eritrean refugees in
Ethiopian camps.150 These Eritreans are forced to reside in camps without any
freedom of movement.
The push factors from their home countries and the treatment that they endure in
Sudan eventually result in unfavorable asylum conditions that force helpless refugees
to contract with smugglers to escape the conditions they are enduring.151 With no
access to work opportunities, and poor protection services provided in Sudan and
Ethiopia, leaving the camps becomes a vital necessity for the refugees. The tribes
residing on Sudan-Ethiopia-Eritrea borders find it a very lucrative business and
reports indicate that trafficking starts there.152 This availability of a large number of
people who are voluntarily willing to illegally travel in order to leave their
impoverished lives has led to the growing number of traffickers and the fortifying of
their networks.153
C. Difficulties in Mapping Human Trafficking in Egypt
There are complexities that arise when studying human trafficking of Eritreans in
Egypt. All of them directly relate to the issue of the lack of will on the Egyptian
government’s part to make it a priority on its political agenda.
150
Id. at 9.
HUMPHRIS, supra note 14 at 14.
152
This problem revives the classical economic theory of Jean-Baptiste Say that ‘supply creates its own
demand’. J. MILL, JAMES, COMMERCE DEFENDED, CHAPTER VI: CONSUMPTION, 81 (1808); WOMEN’S
REFUGEE COMMISSION, supra note 14 at 17.
153
Eritreans become very desperate to the extent that testimonials note that most Eritreans are aware of
the dangers of this process of illegal travelling across Sinai and to Israel, and the threat of ending up as
victims of trafficking; therefore, no matter what their relatives advise them not to take this route, many
Eritreans opt for it despite the clear surrounding dangers. It has been reported that some women even
prepare themselves by taking contraceptive injections prior to the process of illegal smuggling because
they are aware of the large possibility of being raped on the road. Interview with Karin Keil, Hotline
for Migrant Workers, 11 July 2012. Based on referrals for gynecological treatments and pregnancy
terminations arranged by PHR-Israel in 2010, more than 600 women suffered sexual assault or rape.
Furthermore; testimonies provided to UNHCR Cairo office in 2013 by victims of trafficking have
regularly reported rape among women victims. HUMPHRIS, supra note 19 at 7.
151
34
The first problem concerns relations between Egypt and its southern neighbors which
is currently undergoing difficulties owing to conflicts over Nile water usage. This
matter has taken a negative toll on the eagerness of these countries to provide the
necessary cooperation for understanding the networks of traffickers that are operating
transnationally. Without collective action in gathering information, it is impossible
for Egypt to work on curbing this crime.
The second problem relates to the trafficking routes. Tracing the routes of these
networks is complicated owing to many factors including ease of global
communications; and the fact most of the source and transit countries lack the
economic capacity and technology to control their borders efficiently in a manner that
would combat this crime. The lack of sufficient information concerning the routes
assumed by the traffickers adds to the complexity of tackling the problem.
Most of the testimonies provided by surviving victims are unable to reveal specific
routes used by traffickers and testimonies point to a large geographical span that is
very complicated to monitor. However, these testimonies do point to the inception of
this crime around refugee camps in east Sudan (Shagareb and Wad Sharifa).154 Upon
reaching Egypt, there is an absence of clear and credible information on the routes
taken by traffickers to reach the Sinai. A few testimonies indicate using a boat via the
Red Sea all the way from Kassala in Sudan to north Sinai. However, almost all the
surviving victims refer to a land trip from Sudan to Sinai in different vehicles.155
A third problem is that there is an absence of studies related to trafficking of SubSaharan Africans in Egypt concerning the routes used by traffickers to move their
victims all the way from Eritrea (or Sudan) through the Sinai and past the borders
with Israel. Without detailed information, authorities will continue being unable to
curb the crime. Most of the information acquired on the issue is derived from victims’
testimonies, which are unreliable. This is a direct result of the lack of resources
deployed by the Egyptian government to effectively combat the crime. In fact, as
Egypt is a party member to the Convention Against Transnational Organized Crime
and the Trafficking Protocol, the Egyptian government prefers to frame the issue as
154
155
UNHCR concern at refugee kidnappings, disappearances in eastern Sudan, supra note 14.
Confidential information obtained from persons of concern to UNHCR in 2013.
35
one of smuggling illegal immigrants in an attempt to evade its international legal
obligations towards victims. .
The aforementioned obstacles make it difficult to accurately map and understand the
trafficking of Eritreans in Egypt.
III.
Egyptian Legal Framework on Human Trafficking
To address the human trafficking crime in Egypt, the Egyptian government exerted
efforts over three years from 2008 to 2010 that culminated in the drafting of the
Egyptian Law No.64 commonly known as the anti-trafficking law.156 In this chapter I
present the international legal obligations of Egypt to address this crime, followed by
a careful analysis of the Egyptian anti-trafficking law. The chapter ends with a
discussion of the dilemma facing the application of the law to the service of the
victims. This dilemma revolves around the fact that the Egyptian government insists
on perceiving the issue as one of trafficking rather than smuggling.
Egypt has legal obligations to address trafficking. It is a party member to a large
number of international instruments that place obligations on the state to address the
problem. Being a party to the Convention against Transnational Organized Crime and
its Protocols, it has a direct responsibility to address the commission of human
trafficking on its territory. Egypt is also a party to the ICCPR, CEDAW, CRC and its
optional protocol, ICESCR, CAT, ICRMW, the 1957 Abolition of Forced Labour
Convention, and the 1999 Worst Forms of Child Labour Convention.157 All of these
treaties have provisions that oblige Egypt to address human trafficking. Egypt, as
well, as a party to the African Charter on Human and Peoples’ Rights is obliged by
article 5 to prohibit human trafficking.158 As a result, Egypt has a clear responsibility
156
Interview with the Egyptian Ministry of Justice, (2015).
JOY NGOZI EZEILO, REPORT OF THE SPECIAL RAPPORTEUR ON TRAFFICKING IN PERSONS, ESPECIALLY
WOMEN AND CHILDREN, MISSION TO EGYPT 6 (2011), http://daccess-ddsny.un.org/doc/UNDOC/GEN/G11/129/17/PDF/G1112917.pdf?OpenElement (last visited Nov 18,
2014).
158
Article 5 states that ‘All forms of exploitation and degradation of man particularly slavery, slave
trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited’. African
Charter on Human and Peoples’ Rights (“Banjul Charter”), REFWORLD Article 5,
http://www.refworld.org/cgi157
36
to work to stop the commission of this crime on its territories.159 This has eventually
culminated in the adoption of a national legal framework to combat human trafficking
as will be explained below.
A. Egyptian Anti-Trafficking Law No 64 (2010)
In 2010, Egypt promulgated a law on combatting human trafficking - Law No. 64 of
2010160 (hereinafter the Egyptian anti-trafficking law). This law is divided into six
chapters in this order: definitions, crimes and punishments, scope of the territorial
application of the law, international judicial cooperation, protection of the victims,
and concluding provisions.161 The law was followed by Executive Regulations issued
by the Prime Minister Decision No. 3028 of the year 2010. These regulations provide
some practical guidance on the application of the law. An amendment was made to
Article 291 of the Egyptian Child Law that includes a provision on protecting children
from trafficking to make sure that it does not conflict with the Egyptian antitrafficking law.162 The anti-trafficking law also complements the organ harvesting and
transplant law issued in 2009.163 The anti-trafficking law crosscuts the Egyptian Law
No. 68 of 1951, as amended by Law No. 10 of 1961, criminalizing the act of
“employing or enticing a person to engage in debauchery or prostitution.”164
Furthermore, the Egyptian 2014 Constitution included two articles 80 and 89 that had
clear provisions prohibiting different forms of human trafficking.165
The Egyptian anti-trafficking law reflects a good attempt at drafting a comprehensive
law. The first thing to notice in the law is that it does not fail to define the victims of
bin/texis/vtx/rwmain?page=search&docid=3ae6b3630&skip=0&query=Adopted%2027%20June%201
981 (last visited Jan 28, 2015).
159
WELDEHAIMANOT, supra note 20 at 10–11.
160
AL-JARIDA AL-RASMIYYA, LAW NO. 64 OF 2010 (LAW REGARDING COMBATTING HUMAN
TRAFFICKING) (2010).
161
Id.
162
Article 291. AL-JARIDA AL-RASMIYYA, LAW NO. 12 OF 1996 AMENDED BY LAW NO. 126 OF 2008
(THE CHILD LAW) (2010).
163
Law Combating Trafficking in Persons, supra note 9 at 7.
164
JOY NGOZI EZEILO, supra note 157 at 6.
165
Article 80 covers the protection of children ‘from commercial and sexual exploitation’, while
Article 89 covers all forms of slavery, and thus human trafficking. CONSTITUTION OF THE ARAB
REPUBLIC OF EGYPT, (2014), http://www.sis.gov.eg/Newvr/consttt%202014.pdf.
37
trafficking.166 This is one step ahead of the Palermo Protocol and Egypt is to be
commended for it. By defining victims, the law recognizes an obligation on the part of
government officials to identify the victims in order to further provide protection and
assistance to them. Detailed definitions also remove any forms of ambiguity during
the process of prosecuting traffickers which facilitates the work of the prosecution and
judges.
As mentioned, the definition of the crime of human trafficking as per Article 2 of the
Egyptian law is more detailed and comprehensive compared to Article 3 of the
Palermo Protocol:
A person who commits the crime of human trafficking shall be considered
one who deals in any manner in a natural person, including: the sale, offer
for sale, purchase, or promise thereof; or the use, transport, delivery,
harboring, reception, or receipt, whether within the country or across its
national borders; if this occurred through the use of force, violence, or
threat thereof; or through abduction, fraud, deception, abuse of power, or
exploitation of a position of vulnerability or need; or through a promise to
give or receive payments or benefits in exchange for obtaining the consent
of a person to traffic another having control over him; or if the purpose of
the transaction was exploitation in any of its forms, including: exploitation
of acts of prostitution and all forms of sexual exploitation, exploitation of
children in such acts and in pornography, forced labor or services, slavery
or practices similar to slavery or servitude, or begging or removal of
human organs, tissues or a part thereof.167
The drafters of the law worked on including as many forms of the act, means, and
purposes of trafficking in the law, making it more inclusive of crimes and more
incriminating of those persons who even simply promise to sell others. Another
observation on the definition is that the drafters worked on the forms of exploitation
that are observed in Egypt and defined the crime accordingly.
Articles 7 to 15 that cover the crime and punishments of trafficking are detailed and
inclusive of the different aspects of the crime involving the confiscation of funds of
the perpetrators,168 the punishing of public officials involved, 169 and of anyone who
reveals the identity of a victim putting him\her in danger.170
166
Article 1(2). AL-JARIDA AL-RASMIYYA, supra note 160.
Article 3. Id.
168
Article 13 Id.
167
38
The chapter about the scope of application of the law also assures that anyone
involved in trafficking, whether Egyptian or foreign, falls under the jurisdiction of the
Egyptian anti-trafficking law.171
Generally speaking, the Egyptian anti-trafficking law is considered a serious step
towards combatting human trafficking, given the fact that it is the first legal attempt
taken by Egypt. It has opened the door for translating this law into institutional efforts
aimed towards practically addressing the problem.
B. Smuggling or Trafficking of Eritreans in Egypt?
As explained earlier in chapter one, the difference between human trafficking and
smuggling is that trafficking involves coercion of the victims, while smuggling takes
place after consent is made by the smuggler and the contracting person(s). It is
understandable that many Eritreans in Sudan initially seek the services of smugglers
in attempts to reach Egypt; however, many of them report becoming eventually
trafficking victims.172
Until very recently,173 Egypt had officially and continuously denied the existence of
human trafficking of Eritreans in the Sinai explaining that all Eritreans in the Sinai
were intruders who had contracted with smugglers to take them there.174 The previous
Egyptian Anti-Trafficking Coordinator, Ms. Naela Gabr, has herself dismissed the
reports on trafficking in the Sinai and concluded that until victims opt to speak up and
testify against traffickers, it cannot be argued as being more than propaganda given
the lack of concrete evidence.175 The ongoing public statements used by the Egyptian
Anti-Trafficking Coordinator refer to trafficking victims as “infiltrators”.176 The only
forms of trafficking that Egypt has acknowledged as being a problem on its territory
169
Article 12 Id.
Article 9 Id.
171
Article 16 of the law covers the commission of the crime on Egyptian land, air, or waters; or if one
identified victim is Egyptian; or if any preparation of trafficking took place in Egypt; or if committed
by an organized criminal group that is operating in Egypt; or if a perpetrator of this crime was found in
Egypt. Id.
172
WOMEN’S REFUGEE COMMISSION, supra note 14 at 17.
173
State officials in North Sinai until the end of 2012 have continuously denied the existence of any
form of trafficking in North Sinai. SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note
12 at 60.
174
WELDEHAIMANOT, supra note 20 at 9.
175
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 62.
176
HUMPHRIS, supra note 14 at 4.
170
39
are: the issue of sex trafficking of Egyptian girls into forced marriages, and the
trafficking of workers for forced domestic labour.177 This refusal of Egypt to
acknowledge the existence of a problem in Sinai was also raised by the UN Special
Rapporteur on trafficking.178
Aggravating matters is the consideration of the police and military authorities in the
Sinai to the trafficking of Eritreans as being merely a problem of smuggling.179 This
gives a reason for not providing the victims with any adequate shelter or
understanding of what they have been through. In fact, the Egyptian authorities have
systematically arrested and detained the victims prior to deporting them.180 In 2008,
for example, Egypt deported around 1400 Eritreans for committing illegal entry and
residence in Egypt. These Eritreans were detained in the Qanatir prison without
giving access to UNHCR in order to determine whether any of the detained had a
refugee claim.181
As reported by UNHCR, the police authorities in North Sinai arrest all the victims of
trafficking under the suspicion of attempting to illegally exit Egypt given that most of
them are unable to produce any legal documents or residency permits in Egypt.182 In
most cases, victims are denied their access to asylum procedures and treated as
criminals without any proper understanding of their victimization.183 Another
indication of how the matter is handled poorly in Egypt is that Egypt has not
prosecuted any official or filed a case involving colluding with traffickers to date184
177
When the UN Human Rights Council Special Rapporteur on Trafficking visited Egypt to report on
the problem, there was no mention of Sinai and any trafficking of Eritreans. JOY NGOZI EZEILO, supra
note 157 at 3–4; Guirguis, supra note 24.
178
JOY NGOZI EZEILO, supra note 157 at 8.
179
HUMAN RIGHTS WATCH (ORGANIZATION), supra note 140 at 69; UNHCR CAIRO, supra note 14 at
13; United States Department of State, supra note 135 at 163; Law Combating Trafficking in Persons,
supra note 9 at 6 & 21.
180
Given the international pressure reiterated on not to forcibly return Eritreans back to Eritrea, Egypt
had arranged a deal with Ethiopia allowing these Eritreans to travel there.
181
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 78; United States
Department of State, supra note 135 at 163.
182
Jacobsen, Robinson, and Lijnders, supra note 107 at 11; UNHCR CAIRO, supra note 14 at 9; United
States Department of State, supra note 135 at 165.
183
UNHCR CAIRO, supra note 14 at 9.
184
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 4; United States
Department of State, supra note 135 at 164.
40
and continues to deny any presence of collusion.185 In the meantime, Egypt has a legal
obligation to prosecute all those who are proven to collude in trafficking.186 Egypt
continues to perceive the problem of illegal immigration as being more important than
human trafficking. Adding to that, the priorities set by the Egyptian government are
oriented towards the illegal emigration of Egyptians through the Mediterranean.187
185
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 43.
According to the UN Committee on Torture, which reviews State compliance with the Convention,
where state officials have ‘reasonable grounds to believe … that acts of torture or ill- treatment are
being committed by … private actors’ and ‘fail to exercise due diligence to prevent, investigate,
prosecute and punish such … actors,’ such that the state ‘facilitates and enables [traffickers] to commit
acts impermissible under the [Torture] Convention with impunity,’ the state then ‘bears responsibility
and its officials should be considered as authors, complicit or otherwise responsible under the [Torture]
Convention for consenting to or acquiescing in such impermissible acts.’ Id. at 4.
187
In 2014, Egypt established the National Coordinating Committee on Preventing and Combatting
Illegal Migration after several vessels drowned, and others were intercepted in the Mediterranean sea in
hopeless attempts to reach Europe illegally. The National Coordinating Committee on preventing and
combatting illegal migration, FUTURE WORK PLAN FOR THE NATIONAL COORDINATING COMMITTEE ON
PREVENTING AND COMBATING ILLEGAL MIGRATION (2014),
http://www.mfa.gov.eg/English/Ministry/illegal_migration/Pages/default.aspx (last visited Feb 6,
2015).
186
41
IV.
Mapping Egyptian Institutional Efforts
It is undeniable that Egypt has taken many steps on the legal and institutional arenas
to combat human trafficking. Egypt has also sought support from international
organizations holding expertise in combatting human trafficking.
To explain how the law has been translated into action, this chapter covers the
Egyptian institutional efforts exerted, and the impact of the work carried out by
stakeholders whether international organizations or non-governmental organizations.
A. Public Institutions
Having a law in place without a parallel institutional framework to implement it
would be fruitless. In July 2007, a Presidential Decree established Egypt’s National
Coordinating Committee on Preventing and Combating Human Trafficking (hereafter
the Egyptian Trafficking Coordinator).188 This committee was mandated to coordinate
all the tasks of relevant state agencies in combatting human trafficking.189 In its early
efforts to gather information on the crime in Egypt, the committee acknowledged the
existence of five forms of trafficking only: forced marriages of Egyptian girls; organ
trafficking; exploitation of street children; forced labour; and sexual exploitation.190
This committee commissioned the government-affiliated National Center for Social
and Criminological Research to conduct a comprehensive study on trafficking in
persons in Egypt.191 Although this study was completed in late 2010,192 the study
focused only on the forms of trafficking that were recognized by the Egyptian
government at that time, namely forced marriages of girls, trafficking for sexual
exploitation; and the exploitation of street children. The study did not include any
coverage on the trafficking of Eritreans in the Sinai.
188
JOY NGOZI EZEILO, supra note 157 at 7.
Initially headed by the Ministry of Foreign Affairs advisor Ambassador Naela Gabr, the committee
is made up of various representatives, including the Ministries of Defesne, Health, Justice and Interior,
the public prosecutor, the police, the National Council for Human Rights, the National Council for
Women, and the National Council for Childhood and Motherhood. Egyptian Initiative for Personal
Rights. Law Combating Trafficking in Persons, supra note 9. Prime Ministerial Decree no. 1584 of
2007, http://www.mfa.gov.eg (last visited December 13, 2013).
190
Interview with the Egyptian National Council for Childhood and Motherhood, supra note 11.
191
This study was completed in December 2010.
192
Interview with the Egyptian National Council for Childhood and Motherhood, supra note 11.
189
42
One effort that involved planning on how to address trafficking in Egypt was
undertaken at the national level. In December 2010, the Egyptian Anti-Trafficking
Coordinator drafted a National Action Plan to Address All Aspects of Trafficking
2011-2013.193This plan represented the Egyptian approach to addressing human
trafficking based on prevention, protection, prosecution, and participation commonly
known as the 4Ps.194
The plan initially failed to acknowledge the African victims of trafficking in the Sinai,
and targeted only the sex trafficking of Egyptian women and young girls. 195 However,
in its final evaluation report, the Egyptian Anti-Trafficking Coordinator indicated that
two posters were distributed to African embassies producing migrants to Egypt, and
in certain refugee camps in Sudan, warning potential African victims against the
forms and danger of trafficking.196
Through this National plan, the Egyptian Anti-Trafficking Coordinator also
participated in several diplomatic forums covering human trafficking, ranging from
bilateral diplomatic meetings to international conferences that covered the different
aspects of the crime and the challenges that it posed.197 The plan also included
collaborating with the Egyptian Ministry of Interior to include the subject of human
trafficking in its periodic training sessions for police officers of various ranks.198
In 2013, a Second National Action Plan was developed to continue Egyptian efforts to
address the crime. It included many activities that acknowledged the existence of the
193
NATIONAL COORDINATING COMMITTEE FOR COMBATING AND PREVENTING HUMAN TRAFFICKING,
EVALUATING THE EXECUTION OF THE NATIONAL PLAN OF ACTION AGAINST HUMAN TRAFFICKING (JAN
2011 - DEC 2013) 31 (2013),
http://www.mfa.gov.eg/English/Ministry/TraffickinginPersons/naational/Pages/default.aspx (last
visited Jan 3, 2015).
194
NATIONAL COORDINATING COMMITTEE ON PREVENTING AND COMBATING HUMAN TRAFFICKING,
NATIONAL PLAN OF ACTION AGAINST HUMAN TRAFFICKING (JANUARY 2011 TILL JANUARY 2013) 16 2
(2010), http://www.mfa.gov.eg/English/Ministry/TraffickinginPersons/naational/Pages/default.aspx.
195
The plan stated in its introduction that it aims at addressing the forms of trafficking in Egypt which
are[…trafficking in women and girls for the purpose of marriage, exploitation of children in labor,
trafficking in street children, sexual exploitation and prostitution and trafficking in human organs.” Id.
at 1.
196
NATIONAL COORDINATING COMMITTEE FOR COMBATING AND PREVENTING HUMAN TRAFFICKING,
supra note 193 at 16.
197
Interview with the Egyptian National Council for Childhood and Motherhood, supra note 11.
198
AMBASSADOR NAELA GABR, FIFTH EXECUTIVE SUMMERY REPORT OF THE NATIONAL
COORDINATION COMMITTEE FOR THE PREVENTION AND COMBATTING OF HUMAN TRAFFICKING 13 6
(2012).
43
problem of trafficking Eritreans in Sinai, including more research work on victims in
the Sinai;199 raising awareness of African refugees in Egypt on the dangers of
contracting smugglers in Sinai;200 assuring that the state fund for victims of trafficking
is also available to non-Egyptian victims;201 establishing a special anti-trafficking
police unit;202 establishing a database to hold statistics on victims and prosecuted
cases;203 and planning trips to countries of source and destination for law
practitioners.204 Unfortunately, Ambassador Naela Gabr had explained that this plan
was disrupted in March 2013 owing to the transfer of the Egyptian Anti-Trafficking
Coordinator secretariat to the Ministry of Justice, and appointment of the Assistant
Minister of Justice for Human Rights Affairs as the coordinator.205 That took place at
all implies that addressing trafficking crimes is the responsibility of the Ministry of
Justice.206
1. Protection of Victims
A set of activities aiming at protecting identified victims in Egypt is central to any
efforts taken to address trafficking. The Egyptian Ministry of Health has established a
specialized medical unit for treating victims of trafficking located inside the National
Bank Hospital in Cairo. Although an isolated unit with limited geographical outreach,
it is a welcome step given the overall lack of government resources spent in general to
date.207
199
NATIONAL COORDINATING COMMITTEE ON PREVENTING AND COMBATING HUMAN TRAFFICKING,
SECOND NATIONAL PLAN OF ACTION AGAINST HUMAN TRAFFICKING (JANUARY 2013 UNTIL DECEMBER
2015) 10 2 (2013),
http://www.mfa.gov.eg/English/Ministry/TraffickinginPersons/nationalplan2015/Pages/2ndNationalPla
nofActionagainstHumanTrafficking.aspx.
200
Id. at 4.
201
Id. at 6.
202
Id. at 10.
203
Id. at 10.
204
Id. at 11.
205
Ambassador Naela Gabr, THE CASE OF HUMAN TRAFFICKING (2014),
http://www.mfa.gov.eg/Arabic/Ministry/illegal_migration/Pages/peaceafrica.aspx (last visited Feb 6,
2015).
206
In an interview conducted with NCCM, the interviewee stated that as a result of changing the
secretariat of the committee lead to interrupting the plan, and many activities were halted. Interview
with the Egyptian National Council for Childhood and Motherhood, supra note 11.
207
United States Department of State, supra note 135 at 164. It is noteworthy that the numbers of
patients received by this unit was 177 in 2012; and dropped in 2013 to 68 survivors, most of whom
were Eritreans.
44
In addition to the mentioned unit, in 2010, the government also established a legal aid
clinic in collaboration with the Faculty of Law in Alexandria University.208 This clinic
is designed to provide the victims with legal aid to pursue legal prosecution of the
traffickers.
These are not the only efforts. The NCCM has also been active with the collaboration
of the IOM in establishing a hotline for victims of trafficking.209 In August 2010,
NCCM also established a regional shelter in Al-Salam neighborhood in Cairo for
women and children victims to provide rehabilitation and reintegration support.210
Two years later, the NCCM developed a referral mechanism by which different
stakeholders could refer cases of identified victims to the shelter managed by
NCCM.211 In June 2014, NCCM announced that the shelter had hosted 64 foreign
victims since January 2013, the number of Eritrean victims of trafficking of Sinai was
unmentioned.212
2. Prevention Activities
Working on preventing the commission of the crime in the first place by raising
awareness on the nature of the crime, and how it takes place, is considered one of the
pillars of combatting human trafficking. The NCCM has also been active in this area.
It has held ongoing training sessions on combatting human trafficking for many
groups in Egyptian society including government officials, local NGOs, and the
public in general; unfortunately, most - if not all – of the sessions have targeted the
Egyptian officials working on preventing child marriage, and preventing sex
trafficking of Egyptian children;213 The issue of human trafficking in the Sinai was
completely ignored.
208
Law Combating Trafficking in Persons, supra note 9 at 8.
Hotline Number 16021. International Organization for Migration (IOM) Cairo, COUNTER
TRAFFICKING FACT SHEET EGYPT (2012),
http://www.egypt.iom.int/Doc/Counter%20Trafficking%20Fact%20Sheet%20Egypt%20%282012%29
.pdf (last visited Jan 11, 2015).
210
JOY NGOZI EZEILO, supra note 157 at 16; International Organization for Migration (IOM) Cairo,
supra note 209.
211
Interview with the Egyptian National Council for Childhood and Motherhood, supra note 11.
212
EGYPTIAN NATIONAL COUNCIL FOR CHILDHOOD AND MOTHERHOOD, ACTIVITY REPORT OF THE
ANTI-TRAFFICKING OF WOMEN AND GIRLS UNIT 52 40–41 (2014).
213
United States Department of State, supra note 135 at 165.
209
45
NCCM has also worked on designing several publications that address the crime, 214
and launched a website dedicated to human trafficking.215 Still, these publications
focus on the forms of trafficking officially acknowledged as being widespread by the
government only leaving out African victims in the Sinai altogether.
B. Civil Society
The role of civil society in addressing societal problems has often proven effective.
Civil society organizations are effective in mobilizing communities, raising
awareness, and monitoring the work of governments in specific areas in order to
assure that proper attention is given. Unfortunately, the Egyptian civil society
continues to be hampered by strict laws that curb its activities in Egypt through strong
oversight by the Ministry of Social Solidarity. Furthermore, a proposed draft law in
2013 for regulating the operation of NGOs also constrained the work of local NGOs
especially those that criticize the Egyptian government.216
Although the government institutions rely heavily on the support provided by local
and international NGOs in implementing assistance programs directed at victims, it is
clear that the government continues to deal with these NGOs cautiously without
involving them in the planning process of the programs.217 This has resulted in
designing programs that do not match with the capacities of different NGOs and the
actual needs of victims. One of the local NGOs complained that the government
called for a meeting of several NGOs to introduce the anti-trafficking law without
allowing them to provide any comments or suggestions.218
Some NGOs have sought to provide basic legal assistance to trafficking victims;
however, these services are usually confined to a small area of coverage by the NGO,
214
These publications included: a guide on accessing internet; victim stories; a guide on human
trafficking in Egypt; the Law No. 64 of 2010 (anti-trafficking law); stories on child marriages; Islamic
official opinion on trafficking edited by the Mufti; a brochure on the rehabilitation shelter; a study on
child marriages in Assiut Governorate; a study on forced marriages of girls to foreigners in 6th of
October district of Cairo; the Law No. 12 of 1996, amended by the Law No. 126 of 2008 (the law of
the child).
215
http://www.child-trafficking.org/
216
Egyptian Initiative for Personal Rights, PROPOSED GOVERNMENT LAW MAKES NGOS SUBORDINATE
TO SECURITY AND MINISTRY CONTROL (2014), http://eipr.org/en/pressrelease/2014/07/09/2154 (last
visited Dec 12, 2014).
217
JOY NGOZI EZEILO, supra note 157 at 15.
218
Law Combating Trafficking in Persons, supra note 9 at 8.
46
and service face discontinuity owing to lack of funding.219 Since 2011, there has only
been one NGO operating in Al-Arish, North Sinai that has direct activities aimed at
providing support to identified human trafficking victims.220 This NGO had access to
detention facilities in Al-Arish where it distributed food and clothes to foreign
Africans who had been detained there, mostly victims of trafficking.221 The basic
resources that the NGO had at its disposal did not allow it to carry out further
activities.222 In the meantime, this NGO was labeled by Egyptian officials as
fraudulent and pursuing an international agenda of defaming Egypt.223 In spite of its
efforts to remain open, by mid-2013, the NGO was forced to shut down its services
due to the ongoing military campaign carried out by the Egyptian army in the Sinai.224
The role of community based initiatives is also noteworthy; especially in the context
of Bedouin society in the Sinai. There have been some basic attempts by local leaders
in the Bedouin community to put an end to the crime in Sinai; however, these efforts
have been in vain.225
C. International Organizations
Solving the issue of human trafficking in Egypt requires the deployment of ample
resources; however, this can only be presumed effective if taking the form of a
collaborative transnational process that engages key parties, mainly the states of
Egypt, Sudan, Ethiopia and Eritrea on the one hand, and the role of international
organizations to fill in the gap of expertise that the countries may lack. This includes
the involvement of the UN specialized agencies, and the League of Arab States that
has also been alerted to the seriousness of the crime taking place in the Middle East.
The main financers of victim assistance programs are the international organizations
operating in Egypt.226 Since 2008, a consortium of stakeholders has already started to
219
JOY NGOZI EZEILO, supra note 157 at 11.
Interview with an Egyptian NGO, (2015).
221
Id.
222
Id.
223
Interview with the Egyptian Ministry of Justice, supra note 156.
224
Interview with an Egyptian NGO, supra note 220.
225
A community leader told Human Rights Watch that he knew of 15 traffickers who had halted their
activities because it was against Islamic Shariah. SIMPSON AND HUMAN RIGHTS WATCH
(ORGANIZATION), supra note 12 at 41–42.
226
United States Department of State, supra note 135 at 164.
220
47
address the human trafficking of Eritreans. The IOM and UNHCR have assumed
leading roles in these efforts, with the additional support from some other
international NGOs like CARITAS, Catholic Relief Services (CRS), and Médecins
Sans Frontières (MSF).227 These agencies have collaborated in providing different
forms of assistance to surviving victims. The assistance has revolved around a phase
of three to six months after the victim has been identified. The victim is offered
financial assistance, medical and psychological assistance, legal aid if required, and a
temporary shelter until the victim can reintegrate into the society once again.228 The
efforts are commended; however, they continue to rely heavily on the availability of
funding which varies over time.
1. UNHCR
Another organization in Egypt which is mandated to address human trafficking is
UNHCR. UNHCR takes a leading role in supporting identified victims who fall under
the protection mandate of the organization.229 UNHCR has a dedicated team
composed of two staff members who coordinate all the assistance provided by the
agency to victims of trafficking.230 In October 2014, UNHCR reported that it was
providing assistance to 350 victims of trafficking.231 In the same report, UNHCR
estimated the number of victims from 2009 to October 2014 to have been between
25,000 and 30,000.232 These numbers indicate how serious the problem is, and the
attention that is needed to stop human trafficking of Eritreans. UNHCR has worked
on the capacity building level for local authorities by providing training workshops on
international refugee law to the public prosecutor’s office, judges, border patrol
officers, and university students.233 Collaborating with the Cairo Regional Center for
Training on Conflict Resolution and Peace Keeping in Africa (CCCPA), in February
2013, UNHCR also facilitated a session on special protection concerns for victims of
trafficking.234
227
UNHCR CAIRO, supra note 14 at 10.
Id. at 10.
229
Interview with UNHCR Cairo, Egypt, (2015).
230
Id.
231
Refworld | Smuggling and Trafficking from the East of Africa, supra note 15.
232
Id.
233
UNHCR CAIRO, supra note 14 at 14.
234
Id. at 14.
228
48
2. IOM
With UNHCR, IOM is at the forefront in providing activities to address human
trafficking in Egypt. It has fuelled most of the programs carried out in Egypt through
its funding. IOM works on the three pillars of prevention, protection and prosecution
to address the crime. There is a dedicated team within IOM that is tasked with helping
the Egyptian government to address human trafficking.235 Since 2008, IOM has been
engaged in several training seminars for different law enforcement agencies in Egypt,
with the objective of gathering a momentum towards addressing the crime.236
In January 2010,237 IOM fully funded a project named Supporting the Government of
Egypt’s Efforts to Combat Human Trafficking by Enhancing Key Investigation and
Prosecution Capacities.238 Under this project, Egypt managed to train a group of
police officers, diplomats, some local NGOs, and police cadets on essential
information regarding human trafficking in an attempt to relay its expertise to the law
enforcement function. The same project helped in designing an identification
mechanism that would help law enforcement officials to determine if identified
victims fall under the application of the law or not.239
To support the Egyptian anti-trafficking law, IOM published the Guidelines on
Investigation and Prosecution of Trafficking in Persons and Treatment of Victims
during Law Enforcement Proceedings.240 Through this publication the IOM attempted
to provide Egyptian law enforcement with a comprehensive guide to the existing
Egyptian legal framework that covers trafficking in Egypt. The Executive Regulations
issued by the government had failed to address the practical application of the law.
IOM has followed up this publication with the funding of several training seminars
targeting prosecutors and judges on the implementation of the law.241 By 2013, IOM
235
Interview with IOM Egypt, (2015).
International Organization for Migration (IOM) Cairo, supra note 209.
237
Id.
238
Guirguis, supra note 24.
239
Interview with IOM Egypt, supra note 235.
240
International Organization for Migration (IOM) Cairo, supra note 209.
241
By the end of 2012, five training seminars were conducted for Judges of the First Instance Court,
and six seminars for deputy-prosecutor general had already been conducted. Interview with IOM
Egypt, supra note 235.
236
49
had already started providing consultations to the Sudanese government in drafting an
anti-trafficking law; however this law has not come to life to date.242
On the protection level, the IOM was the main financial supporter for the
establishment of the NCCM regional shelter for women and children victims;
however, the government viewed this shelter as targeting Egyptian victims rather than
African victims of trafficking.243 This is because the government perceived the
Eritreans as illegal migrants rather than victims of trafficking. The IOM then
produced a documentary to raise awareness of different forms of trafficking in Egypt.
Unfortunately, this movie also failed to acknowledge the issue of trafficking in the
Sinai and only focused on the forms of trafficking that were on the Egyptian
government’s agenda.244
3. United Nations Office on Drugs and Crime (UNODC)
As the office mandated to provide assistance to governments in the field of
combatting crimes, the United Nations Office on Drugs and Crime (UNODC) has also
exerted several efforts in addressing trafficking in Egypt. The UNODC efforts have
focused mainly on the publication of reports245 and the carrying out of monitoring
activities of the government of Egypt to address human trafficking. Under a special
project funded by Norway since 2011, UNODC carries out coordination activities
among governments in the Arab League to assure a proper regional address of the
crime.246 These activities target legislators, parliamentarians, policy makers, criminal
242
Bureau of Public Affairs Department Of State. The Office of Website Management, TRAFFICKING IN
PERSONS REPORT 2013 342 (2013), http://www.state.gov/j/tip/rls/tiprpt/2013/ (last visited Aug 22,
2014).
243
Although there were some instances for receiving African victims in these shelters; however, the
established referral mechanism focused mainly on Egyptian victims. Interview with IOM Egypt, supra
note 235; Interview with the Egyptian National Council for Childhood and Motherhood, supra note 11;
JOY NGOZI EZEILO, supra note 157 at 10.
244
The movie covered forced marriages of Egyptian girls, forced child labour, and organ trafficking.
THE PATH: A DOCUMENTARY ON HUMAN TRAFFICKING IN EGYPT, (2012),
https://www.youtube.com/watch?v=T_eRKraxmbQ&feature=youtube_gdata_player (last visited Jan
13, 2015).
245
On its website, UNODC lists many publications covering the Middle East and North Africa in
general, http://www.unodc.org/middleeastandnorthafrica/en/publications/publications-traffickingcrime-and-terrorism.html
246
UNODC, STRENGTHENING THE FRAMEWORK OF THE ARAB REGION TO PREVENT AND COMBAT
HUMAN TRAFFICKING, http://www.unodc.org/middleeastandnorthafrica/en/projectprofiles/xmex19.html.
50
justice practitioners, and victim service providers.247 Most of these activities are of a
diplomatic nature and are not translated into direct implementation of activities
carried out with the victims.248
4. League of Arab States (LAS)
The problem of human trafficking has also found its way to the agenda of the League
of Arab states (LAS), given the dependency of the Gulf States on foreign labour. The
Arab League aims at assuring that the foreign labour are not exposed to different
forms of human trafficking. LAS first addressed human trafficking in the Middle East
in 2009. It worked on intensifying diplomatic efforts with the aim of establishing a
comprehensive strategy for addressing human trafficking. This strategy came into
existence in February 2012 with the aim of providing consultative guidance to
governments on how to develop domestic legal frameworks to address the crime.249
The strategy as well included drafting a model law for combatting human trafficking
in 2010.250 Of note is the fact that the model law was built on the Egyptian AntiTrafficking Law No.64.251 The same strategy also called for establishing an LAS antitrafficking unit tasked with mapping the crime inside member states, creating a
centralized database for the collection of information and analysis, and the offering of
expertise to member states.252
This chapter has described how Egyptian public institutions, civil society, and
international organizations have attempted to implement the international and
domestic legal framework. As presented, recognizing non Egyptian victims of
trafficking continues to be one of the major challenges that Egypt faces. The next
Chapter analyzes the obstacles facing Egypt in effectively addressing the problem of
247
Id.
AMBASSADOR NAELA GABR, supra note 198 at 11.
249
LEGAL AFFAIRS UNIT, TECHNICAL SECRETARIAT OF THE ARAB MINSTERS OF JUSTICE, ARAB
COMPREHENSIVE STRATEGY FOR COMBATTING HUMAN TRAFFICKING 42 (2012).
250
Id. at 7.
251
Legal Affairs Unit, Technical Secretariat of the Arab Minsters of Justice, ARAB MODEL LAW FOR
COMBATTING HUMAN TRAFFICKING (2010),
http://www.lasportal.org/wps/wcm/connect/LAS/las/las_ar_aln/model_arab_laws/?WCM_PI=1&WC
M_PI=1&WCM_Page.559e0e80497d19518869eb69b7aacf42=1 (last visited Mar 13, 2015).
252
LEGAL AFFAIRS UNIT, TECHNICAL SECRETARIAT OF THE ARAB MINSTERS OF JUSTICE, supra note
249 at 38–41.
248
51
the human trafficking of Eritreans and proposes different initiatives to strengthen
Egyptian efforts.
52
V.
Conclusion and Recommendations
We have seen how human trafficking of Eritreans takes place in Egypt via networks
of smugglers from Sudan, leading all the way to the Sinai. Egyptian efforts in
response to this crime through an established legal framework along with institutional
efforts have also been highlighted. This chapter is divided into two parts: the first
analyzes why the efforts carried out to date continue to be ineffective in curbing
human trafficking in Egypt. These reasons include lack of proper identification of the
problem, loopholes in the legal framework, ineffective institutional activities, and
continuous de-prioritization of the problem. The second part of the chapter discusses
major areas of improvement that Egypt can work on to curb human trafficking. These
areas include: addressing the root causes that have lead many Bedouins in the Sinai to
be involved in this crime; applying changes to the current institutional framework;
exerting greater effort in preparing the Egyptian law enforcement in addressing the
crime; and continuously reviewing the legal framework in place to bridge any gaps in
it.
A. Reasons for Ineffectiveness
1. Loopholes in the Trafficking Protocol
One reason for ineffectiveness is the loopholes in the Trafficking Protocol. Egypt has
designed its legal framework for addressing human trafficking on the model provided
by the Trafficking Protocol.253 As explained in chapter three, Egypt introduced further
features in its national law to ensure that the anti-trafficking law no. 64 is tailored
towards specific forms of trafficking that are particular to Egypt. Because any
loopholes in the Trafficking Protocol are automatically reflected in the Egyptian
national law, there are several issues with the Trafficking Protocol that represent
challenges on the international level and have an impact on Egypt. While the process
of amending and international treaty is a very slow process, if not almost impossible;
253
JOY NGOZI EZEILO, supra note 157 at 6.
53
by acknowledging the loopholes in the Trafficking Protocol, Egypt will be able to fill
these gaps in it is own national law.
The effectiveness and impact of the Trafficking Protocol can be characterized as
minimal. It was hoped that the Palermo Protocol would take strides in combatting
human trafficking especially that it is built on efforts of five earlier treaties that
address the same problem. However, because the two earlier treaties were built on
such erroneous assumptions of white race supremacy, it is understandable that the
following treaties, along with the current framework in place – set by the Trafficking
Protocol – would also reflect notions of the supremacy of Europe and the West in
general over other parts of the world.254
A large number of NGOs participated in the Trafficking Protocol negotiation process,
accompanied by an organized UN Inter-Agency Group composed of the UN Human
Rights Commission, UN High Commissioner of Refugees, UN Children’s Fund, and
the International Organization for Migration.255 However, the end result did not meet
the awaited expectations. The UN 2000 Protocol is a clear example of a well-crafted
UN document employing a non-obligatory language.256 The 2000 Protocol is full of
gaps that have rendered it incapable of providing a comprehensive legal framework
that would put an end to this crime. In an analysis of the Palermo Protocol travauxpreparatoire, Anne Gallagher observes how several issues were either skipped
deliberately or were not given due attention by the committee which raises questions
on the intentions of the negotiators and the effectiveness of the Protocol.257 This
became clearer when other regional bodies adopted anti-trafficking treaties258 in an
254
As indicated in chapter one, the first two international treaties addressing human trafficking (19041910) were Eurocentric with clear reference to the supremacy of the white race. See MOREHOUSE,
supra note 28.
255
Anne Gallagher, Human rights and the new UN protocols on trafficking and migrant smuggling: A
preliminary analysis, 23 HUM. RIGHTS Q. 975–1004, 1001–1002 (2001).
256
Id. at 995.
257
The negotiations around Organ trafficking and provisions on child trafficking were both briefly
debated by the committee and the resulting provisions were viewed by the UN specialized agencies’
observers as inadequate and didn’t meet their expectations as other international legal instruments. See
Gallagher, supra note 255.
258
The European Union Council adopted in 2002 the Framework Decision on Combating Trafficking
in Human Begins, and followed it by the Council of Europe Convention on Action against Trafficking
in Human Beings in 2005. SHELLEY, supra note 10 at 11.
54
attempt to bridge the gaps in the convention and “supplement the limited or nonexistent protection scheme of the UN Trafficking Protocol.”259
2. Failure to Address Root Causes
The Trafficking Protocol has failed in addressing the root causes of the crime. A
general problem in the language of the Protocol is that it focuses on the criminal
aspect of the crime and takes a law enforcement perspective instead of focusing on the
socio-economic problems that underlie it and lead people to become victims in the
first place.260 Being a treaty drafted by states under the auspices of the United
Nations, the Palermo Protocol ended as a document insuring the interests of
governments over the interests of individuals.261 As indicated in the first paragraph of
it preamble, the Palermo Protocol states that to prevent and combat the trafficking of
persons, a comprehensive international approach is required;262 unfortunately, this is
not the case. Article 9 of the Trafficking Protocol - addressing the prevention of
trafficking - states in paragraph 4 that “to alleviate the factors that make persons,
especially women and children, vulnerable to trafficking, such as poverty,
underdevelopment, and lack of equal opportunity.”263 There are many reasons that
contribute to trafficking that are unaddressed by the Trafficking Protocol. For
instance, the issue of facilitating legal labour migration was not included at all
although it is one of the main reasons why people fall victim to traffickers in the first
place because of how complicated it has become to pursue legal migration.264 Other
factors include regional conflicts that create waves of refugees that are unattended by
the international community, and businesses dependency on trafficking to provide the
cheap labour necessary to remain competitive.265 Furthermore, thousands of people
259
CORNELIUS FRIESENDORF ET AL., STRATEGIES AGAINST HUMAN TRAFFICKING: THE ROLE OF THE
SECURITY SECTOR 331–332 (2009).
260
Id. at 65.; SHELLEY, supra note2 at 2; Martina Pomeroy, Left out in the Cold: Trafficking Victims,
Gender, and Misinterpretations of the Refugee Convention’s Nexus Requirement, 16 MICH J GEND. L
453, 458 (2009); See STORMY MICHELLE SLIDER, HUMAN TRAFFICKING: LAW
ENFORCEMENT’S PERCEPTIONS AND KNOWLEDGE, December, 2012.
261
SHELLEY, supra note 10 at 10.
262
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 33. See preamble.
263
Id. Art. 9.4
264
If there were accessible means of migration, many people would not fall as victims to traffickers
who easily pose themselves as human smugglers. SHELLEY, supra note 10 at 3.
265
Id. at 3.
55
are trafficked to Western Europe which is in dire need of labour because of low birth
rates.266
It can therefore be deducted that demand for domestic labour at a low cost is one
reason that fuels trafficking.267 People who consume sexual services never think or
wonder how their prostitutes ended in this business.268 The negotiations over the
Protocol almost failed to include organ removal; however, it managed to survive
despite questionable objections by some negotiators that argued against its inclusion
claiming that it was not the focus of the committee.269 Instead of allowing for safer
migration channels, the more tightened borders, and the more restrictive immigration
policies actually led to increased demand for trafficking.270
The above mentioned issues are central to combatting human trafficking. For a
comprehensive approach to the problem, the Palermo Protocol should have addressed
the impact of economic disparity between states, and tightened migration laws that
feed directly into trafficking.271
3. Gaps in Providing Assistance to Victims
Another weakness of the Trafficking Protocol is its inability to address the needs of
the victims. Article 6 of the 2000 Protocol is full of gaps that actually raise serious
doubts on the intention of the drafters; it starts in 6.1 by requesting states to intervene
in “appropriate cases and to the extent possible under its domestic law.”272 Allowing
states to differentiate between victims by classifying them as appropriate and nonappropriate opens the door to states determining who deserves protection;273 which
then leads to states claiming different reasons for evading from responsibilities. This
266
Id. at 13.
Id. at 39.
268
Id. at 39.
269
Gallagher, supra note 255 at 988.
270
Trafficking flows reported by the UNODC show that 73% of the trafficking victims are exploited in
destination countries which are rich countries. The poor socioeconomic conditions of the victims help
the traffickers to exploit them by raising false hopes. Hathaway, supra note 260 at 71; UNITED
NATIONS OFFICE ON DRUGS AND CRIME, supra note 29 at 40–41; Gallagher, supra note 255 at 976.
271
See SIDDHARTH KARA, SEX TRAFFICKING: INSIDE THE BUSINESS OF MODERN SLAVERY 41 (2008);
SHELLEY, supra note 10 at 44–45; David A. Feingold, Human Trafficking, FOREIGN POLICY 26–32, 32
(2005).
272
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 33. Art 6.1.
273
MOREHOUSE, supra note 28 at 46.
267
56
clearly is not a humanitarian approach that seeks to protect the victims; in fact, it aims
only at preserving state resources and denies obligations towards the victims.
The same article does not explain what the “to the extent possible” comprises, setting
no minimum standards for assistance and allowing every state to determine this
assistance domestically. This article has three gaps instead of one, allowing states to
evade any responsibilities towards the victims.274
The practice following the entry into force has proven that states are good at
exploiting these gaps.275 States like Egypt have continuously labeled victims of
trafficking as illegal migrants in order to evade their international obligation to
provide protection and assistance to these unidentified victims. Following these gaps,
article 6.3 requests that states “shall consider” providing physical, psychological and
social recovery of victims. The use of the term “shall consider” gives states space to
elude their responsibilities towards the victims. It offers states the liberty to
domestically decide whether an action is worth or not. It is also worth noting that
most of the victims are identified in the destination countries - mostly Western states rather than the origin and transit countries.276 And the way the Protocol text is drafted
reflects the destination states’ intentions to minimize their responsibilities toward the
victims.
Because of the very vague language of article 6, it is therefore not surprising that the
drafters ensure that the following article 7 - that addresses the legal status of victims
upon identification – has several loopholes allowing states to deport the victims back
to their home countries at will.277 Article 7 allows states to only “consider” allowing
victims to reside in their territory “temporarily or permanently” and in “appropriate
case.” The confusing same threshold argument extends here. These terms are very
open to interpretation and allow member states to interpret their obligations at will.
274
Sigmon, supra note 21 at 252.
Id. at 253.
276
Origin countries are defined as the countries where the victim originates. Transit countries are
defined as the countries where victims are transited before reaching their final destination.
277
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 33. Art 7.1
275
57
This has led, in many cases, to states’ deporting victims back to their home countries
without due attention given to the trauma that they have endured.278
Another serious gap in the protection of victims of trafficking is found in Article 8
which covers the conditions of repatriating victims back to their home countries.
Article 8.1 obliges states to return victims “without undue or unreasonable delay”.279
The article was drafted in a language that ensures that the victims are offered a narrow
opportunity to reside in the countries of destination; and at the same time undermines
the fact that in most trafficking cases, these victims fell as prey to traffickers in their
countries of origin.280 The Palermo Protocol stresses that these countries of origin
should not delay the repatriation of their nationals. In the following paragraph of the
same article, the protocol states during the process of returning the victims back to
their countries of origin it “shall be preferably voluntary”.281 The use of the term
“preferably” allows destination states to force victims to return to their home
countries according to provisions in domestic legislation. This does not place the best
interest of the victims in the forefront. In fact its focus is to not jeopardize the
interests of destination states. The travaux-preparatoires also clearly points out that
the use of the term “preferably” adds no obligation on the returning states
whatsoever.282
The way the Trafficking Protocol deals with repatriating victims clearly conflicts with
protecting asylum seekers and refugees. It fails to provide sufficient protection for this
group.283 It conflicts with the principle of non-refoulement, and the obligation of
states to not penalize this group for illegal entry and residence. Although the Protocol
does include a clause protecting the rights of the victims under the 1951 convention,
278
It is important to note that this optional tone of the provisions for the protection of the victims was
criticized and pointed out clearly by the NGO observers and the UN Inter-Agency Group that observed
the work of the committee, however, in vain. Gallagher, supra note 255 at 990.
279
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 33. Art 8.1.
280
Many of the trafficking victims are deceived in their home countries by traffickers who offer them
different incentives to lure them into different trafficking schemes. When victims are forced to return
back to their home countries, they return back to the same people who lured them before and would
retaliate against them.
281
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 33. Art 8.2.
282
Gallagher, supra note 255 at 993; Feingold, supra note 271 at 30.
283
Young, supra note 104 at 116.
58
other articles, specifically Articles 5,6,7,8, and 11284 give states the liberty to take
penalizing decisions according to their domestic laws. This creates confusion and
internal inconsistency that eventually leads to the loss of victims’ rights.
4. International Cooperation at its Weakest
When tackling international cooperation, the Trafficking Protocol fails to include any
provisions allowing effective cooperation. Although the Trafficking Protocol states in
Article 2(c) that one of its main purposes is to promote international cooperation, it
actually does very little to achieve this.285 Articles 9 and 10 of the Trafficking
Protocol that discuss international cooperation, information exchange, and training
fail to use a language that clearly obligates states to cooperate towards this goal. In
article 9.4, the protocol uses the term “shall take, or strengthen,”286 which creates a
gap in the text allowing states to evaluate themselves what the measures they are
obliged to carry out in this matter are. This leads to a wide interpretation of the text
and eventually the loss of its power. Further, article 10 starts by requesting states to
cooperate “as appropriate,” and “in accordance with their domestic law”;287 the use of
these terms offers the states leeway to determine what they want to invest in when
combatting this crime - as if the crime was not serious enough for the states to choose
what to commit to.
The seriousness of these gaps in the Protocol is that the destination countries that
profit enormously from this crime are actually dissuaded from investing in combatting
it. As explained by Peter Klerks, controlling a network of international criminals
would require an approach involving more flexible modalities of international
cooperation between different authorities288 something that the Trafficking Protocol
284
Id. at 118–119. As explained in this section, all these articles include loopholes allowing states to
take necessary measures under their own domestic laws which allows the states to evade their
obligations towards the victims accordingly.
285
CENTRE FOR INTERNATIONAL CRIME PREVENTION (UNITED NATIONS), supra note 33. Art 2(c).
286
Id. Art 9.4.
287
Id. Art 10.1
288
Peter Klerks & Eysink Smeets, The Network Paradigm Applied to Criminal Organizations:
Theoretical nitpicking or a relevant doctrine for investigators? Recent developments in the
Netherlands, 24 CONNECTIONS 53–65, 53 (2001).
59
fails to stipulate clearly. As long as states have flexibility to interpret their
responsibilities vis-à-vis the Protocol, it will never be effective.289
5. Border Measures: How to Criminalize the Victim
The Trafficking Protocol emphasizes border management as a main tool for
identifying victims and unraveling networks. However, the provisions drafted for this
aim also fall short in leading to efficient results. Articles10, 11, 12, and 13 address
information exchange, border measures, security and control of documents, the
legitimacy and validity of documents; all focus on crime prevention at the border
although this process is a difficult task.290 This task is complicated because the
tightened migration laws force the victims to comply with the traffickers in order to
reach their destinations. These traffickers with their huge resources manage to
smoothly arrange border crossings and are seldom identified at this point.
Furthermore, the traffickers manage not to reveal their actual intentions while at
border points; in fact they seldom require the use of coercion until the victims arrive
at their destinations because they hide their true intentions until after the victim
arrives to the destination.291
Article 11 of the Trafficking Protocol covers the border measures to be taken by states
in curbing the crime.292 Unfortunately this article does not serve any of the victims; in
289
In another note by Anne Gallagher, during the negotiations of the Palermo Protocol, penalties for
trafficking were negotiated and accepted by the committee, however, it was quietly removed from the
final version. Gallagher, supra note 255 at 984.
290
Hathaway, supra note 260 at 72.
291
Id. at 73.
292
Article 11 states that “1. Without prejudice to international commitments in relation to the free
movement of people, States Parties shall strengthen, to the extent possible, such border controls as may
be necessary to prevent and detect trafficking in persons. 2. Each State Party shall adopt legislative or
other appropriate measures to prevent, to the extent possible, means of transport operated by
commercial carriers from being used in the commission of offences established in accordance with
article 5 of this Protocol. 3. Where appropriate, and without prejudice to applicable international
conventions, such measures shall include establishing the obligation of commercial carriers, including
any transportation company or the owner or operator of any means of transport, to ascertain that all
passengers are in possession of the travel documents required for entry into the receiving State. 4. Each
State Party shall take the necessary measures, in accordance with its domestic law, to provide for
sanctions in cases of violation of the obligation set forth in paragraph 3 of this article. 5. Each State
Party shall consider taking measures that permit, in accordance with its domestic law, the denial of
entry or revocation of visas of persons implicated in the commission of offences established in
accordance with this Protocol. 6. Without prejudice to article 27 of the Convention, States Parties shall
consider strengthening cooperation among border control agencies by, inter alia, establishing and
60
fact the tightened borders are the first reason why many victims opt voluntarily to
seek the services of smugglers and traffickers.293 The principle emphasis of Article 11
is to identify the criminal but not the victim.294 As a result, this focus on tightening
border measures feeds directly into the demand for traffickers.295 With tightened
boarders, more people would use smugglers for attempting to cross borders. This
would eventually allow traffickers to find more victims. The strict border measures
undermine, as well, the rights of asylum seekers and refugees who have already
escaped from persecution by complicating their plight.296 Owing to the call for
tightened borders, victims of trafficking have no other option than adhering carefully
to the traffickers’ commands as it is their only hope for reaching the destination. As a
result, once arrived they reside illegally in the country and enjoy even fewer rights as
undocumented illegal residents.297 These victims further feel reluctant to approach the
authorities out of fear of deportation, and therefore endure all forms of exploitation to
avoid it. The other side of the problem is that upon identification of the victims,
authorities in destination countries commonly treat them as illegal residents with
fewer rights and subject them to prosecution for entering the country illegally.298
Compounding these poor protection provisions for the victims, the identified victims
are often extremely reluctant to report their traffickers as the victims are eventually
repatriated back to their countries – to the same places where they were initially
victimized – and fear retaliation. This explains a situation whereby victims opt to
protect the traffickers as a means to a lesser harm.299
Identification of victims at border points provides incentives for the authorities to
falsely identify them as smuggled economic migrants rather than trafficking victims
or other refugees who have been subjected to persecution and opted to escape;300 the
maintaining direct channels of communication.” CENTRE FOR INTERNATIONAL CRIME PREVENTION
(UNITED NATIONS), supra note 33.
293
Feingold, supra note 271 at 27.
294
Gallagher, supra note 255 at 994.
295
Hathaway, supra note 260 at 75; Pomeroy, supra note 260 at 456.
296
Young, supra note 104 at 101.
297
Hathaway, supra note 260 at 75–76; Pomeroy, supra note 260 at 456.
298
Hathaway, supra note 260 at 76.
299
Gallagher, supra note 255 at 991.
300
Young, supra note 104 at 106.
61
result is granting them lesser rights and evading their international obligations
towards the protection of these victims.301 This creates a lacuna that jeopardizes the
intention behind the Palermo Protocol. The UN Inter-Agency Group raised this
problem during the negotiation phase. It explained that there was no clear mechanism,
neither in the trafficking protocol nor in the smuggling one, to differentiate between
victims of trafficking and smuggled migrants; and that the two drafted instruments
would continue to create confusion between these two groups which would lead to
states determining upon will and perpetuate the failure to identify the victims of
trafficking efficiently.302
The problem of identification does not stop here; in reality, it is compounded by other
variables such as the trauma suffered by the victims, their loss of trust in authorities,
the fear for the victims’ lives and the lives of their families back home, the language
barriers, and a lack of knowledge of their rights.303 All of these factors complicate the
process of identification of the victims.
6. Low Conviction Rates
A major problem facing the Trafficking Protocol is that after 11 years from entering
into force, human trafficking continues to be the only serious crime dealt with by
most courts in the world with leniency.304 Most national legislation in the world is
unable to effectively deal with the crime.305 The conviction rate for this crime
continues to be “embarrassingly low”.306 The Global Report on Trafficking in Persons
issued by UNODC mentions that although by 2009, about 80% of the 162 countries
that had ratified the protocol had included domestic legislation addressing trafficking
as a crime;307 the number of convictions recorded has been “0.154 per 100,000
people, such as homicides in Iceland or kidnapping in Norway.”308 This reflects an
absence of political will, inadequate investment of resources, and insufficient
301
Gallagher, supra note 255 at 995.
Id. at 1000–1001.; Young, supra note 104 at 123.
303
Sigmon, supra note 21 at 253–254.
304
SHELLEY, supra note 10 at 12.
305
UNITED NATIONS OFFICE ON DRUGS AND CRIME, supra note 29 at 81.
306
Id. at 81.
307
Id. at 83.
308
Id. at 86.
302
62
protection for the victims.309 There is even a common understanding that the victims
are to be blamed for their situation as they are the ones who put themselves in this
precarious position.310 This reflects no understanding of the core reasons behind the
commission of the crime, and hence, increases the unlikelihood that this legal
framework will be effective in combatting the crime. 311
As a result, the absence of comprehensive provisions for identifying the victims in the
Trafficking Protocol does not protect them. A comprehensive approach would
therefore aim at facilitating safe migration of labour, coupled with more labour
protection laws that would counter any forms of exploitation.312
B. Recommendations
As explained in chapters three and four, it is undoubted that the efforts already carried
out by Egypt to combat human trafficking are commendable; however they are not all
that can be done. This section discusses areas that require improvement for more
effective address of the human trafficking of Eritreans in Egypt. These include:
necessary amendments to the law, effective institutional efforts, robust law
enforcement, economic empowerment of the Sinai tribes, more diplomatic outreach,
and cooperation with international organizations working in this field.
1. Amendments to the Law
The Egyptian anti-trafficking law was commended by the UN Special Rapporteur on
trafficking as an important step towards combatting the crime in Egypt;313 however,
the law still fails to make a difference. The Egyptian Initiative for Personal Rights
(EIPR) commenting on Article 2 pointed out that many of the terms used in the
definition had been previously mentioned in other Egyptian laws implying different
interpretations. The result is that prosecutors are confused about which law to apply
when they file their cases. Terms need to be equated with the existing definitions
309
Id. at 88.
SHELLEY, supra note 10 at 12.
311
Even if we can raise the level of conviction of traffickers; as mentioned earlier, a focus on
prosecution of traffickers only will not stop the crime as long as the demand for traffickers is high.
Feingold, supra note 271 at 30.
312
Hathaway, supra note 260 at 74.
313
JOY NGOZI EZEILO, supra note 157 at 3.
310
63
found in other laws and clearly defined;314 this applies to defining “exploitation in
acts of prostitution”, “forced labor and services”, “slavery or practices similar to
slavery or servitude”, and “the removal of human organs or tissue parts thereof”.
EIPR adds that this issue was neglected while drafting the Executive Regulations for
the law, and continues to be neglected until today.315 The absence of clear definitions
for legal terms in the law was also highlighted by the National Center for Judicial
Studies in one of its published papers.316
Another problem in Egyptian legislation is that the definition of trafficking includes
victims of “forced labor and services”.317 “Forced labor and services” also includes
domestic workers who have been “explicitly excluded”318 from protection by the
Egyptian Labor Code of 1994. This creates a conflict between two laws that requires
reconciliation through the amendment of the Labor Code of 1994, especially that
Egypt already has international obligations towards domestic labour as part of its
commitment to the ICRMW.319
In addition to the problem of clear definition of terms, article 1(3) defining the victim
of trafficking does not indicate where the burden of proof lies. 320 It is unclear whether
the victim is the entity required to prove victimization or the authorities. This leaves a
gap in the identification step of the process which leads to an absence of protection
for victims. This is complicated by the fact that most surviving victims are not in an
emotional or a psychological position to provide detailed information on the crime.
Thus, victims are unable to prove their cases.
Concerning the crimes and punishments chapter of the Egyptian anti-trafficking law,
although the law clearly stipulates a fine between 50,000 and 200,000 Egyptian
There is no definition for the term “exploitation in acts of prostitution”; however, the 1961 Egyptian
anti-prostitution law includes a definition to the term “exploitation of the prostitution or immorality of
another”. It is recommended that both terms be equated to eliminate confusion. See Law Combating
Trafficking in Persons, supra note 9 at 10–11.
315
Id. at 11.
316
Adel Maged, BASIC LEGAL TERMS AND ELEMENTS OF HUMAN TRAFFICKING CRIMES (2012).
317
Article 2. AL-JARIDA AL-RASMIYYA, supra note 160.
318
Law Combating Trafficking in Persons, supra note 9 at 15.
319
Id. at 15.
320
Id. at 15.
314
64
pounds (EGP) for those who commit human trafficking,321 this has failed to deter the
commission of the crime. Evidence shows that one ransom paid to release an Eritrean
victim stands higher than 200,000 EGP.322 It would be better for the lawmakers to
leave this fine open and without a ceiling allowing the prosecution and court to
determine the fine depending on the severity of the crime. In this way, the fine
mechanism would be more efficient as a deterrent to the commission of the crime.
Another instance of confusion is created by article 6 of the anti-trafficking law. This
article stipulates harsher penalties for specific forms of human trafficking crimes;323
however, these forms are almost inclusive of all forms of human trafficking. This
creates redundancy and confusion over its relevance and practical application.
Prosecutors will be confused on which set of penalties they should apply, whether
article 5 or article 6.
Unfortunately the chapter covering international judicial cooperation fails to include a
clear obligation on Egyptian judicial and police authorities to cooperate with
respective foreign authorities with regards to investigating trafficking crimes. Article
18 includes a paragraph that conditions international cooperation on the provision of
available bilateral and multilateral agreements with other countries.324 With an
absence of an obligation to cooperate, destination countries that benefit from the
crime are relieved from any duties to do so. This reflects the absence of political will
to address a serious crime like trafficking, especially given the fact that most forms of
trafficking are transnational.
321
Article 5. AL-JARIDA AL-RASMIYYA, supra note 160.
REISEN ET AL., supra note 14 at 39.
323
Article 6 states that “Life imprisonment and a fine not less than 100,000 pounds and not to exceed
500,000 pounds shall be imposed on anyone who committed the crime of human trafficking in the
following cases:
1) If the perpetrator established, organized, or managed an organized criminal group for the purposes of
human trafficking, if he was a leader thereof, if he was one of its members or belonged thereto, or if the
crime was of a transnational nature; 2) If the act was committed by way of threats of death, serious
harm or physical or psychological torture; or if the act was committed by a person carrying a weapon;
3) If the perpetrator was the spouse, one of the ascendants or descendants, or custodian or guardian of
the victim, or was responsible for the supervision or care or had authority over the victim; 4) If the
perpetrator was a public official or was assigned to carry out a public service and committed the crime
by exploiting the office or public service; 5) If the crime resulted in the death of the victim or caused
him to suffer a permanent disability or an incurable disease; 6) If the victim was a child, was
incapacitated or was a person with disabilities; 7) If the crime was committed by an organized criminal
group.” AL-JARIDA AL-RASMIYYA, supra note 160.
324
Article 18. Id.
322
65
The chapter on protecting the victims has many gaps that render it incapable of
assisting the victims. Article 21 covers the impunity of anyone who is a victim of
trafficking; unfortunately it creates a legal limbo as the article fails to address the
situation of victims who opt to collude with traffickers in exchange for not being
tortured.325 The following Article 22 also includes general guidelines on the forms of
protection that must be offered to the victims, with details to be provided in the
Executive Regulations that followed the law.326 The official Executive Regulations
fail to include specific information on how these forms of protection will be offered to
the victims. Practice has shown that the Eritrean victims of trafficking that are
identified in the Sinai are initially held in detention facilities in the Sinai prior to their
being moved to other detention centers or to the shelter in Cairo.327
There is inadequate attention paid to the process of identifying victims of trafficking.
The same article 22 mentions the “return [of the victim] to his homeland in an
expeditious and safe manner, if he was a foreigner or a non-permanent resident in the
State”.328 While it does assure that the authorities support those wishing to return
swiftly back to their home countries, it fails to include any obligation on Egypt to
offer legal assistance to those who opt to seek legal residence or asylum in Egypt.329
The following Article 23 guarantees protection for the victims conditioned on the
duration of the legal proceedings for prosecution of the perpetrators. Once the
proceedings end, there is no obligation on Egypt to extend further protection to the
victims. 330 The same article fails to insist that communication with the victim be
carried out in a language that the victim can understand.331
325
Article 21. Id.
Article 22. Id.
327
Law Combating Trafficking in Persons, supra note 9 at 18.
328
AL-JARIDA AL-RASMIYYA, supra note 160.
329
JOY NGOZI EZEILO, supra note 157 at 12. A similar phrase is also included in Article 25. Article 25
states that: […] The Foreign Ministry shall also coordinate with the relevant authorities in other
countries to facilitate the safe and expeditious return of foreign victims to their countries of origin.
Article 25 AL-JARIDA AL-RASMIYYA, supra note 160.
330
IOM has indicated that the idea of issuing a “special visa for trafficked victims” was already
introduced to the Egyptian government previously; however, it was rejected as the government
indicated it would be a leeway for illegal immigrants to obtain residency in Egypt. This idea was
derived from the US ‘T Nonimmigrant status’ visa, and the Australian ‘Human Trafficking Visa
Framework’. Interview with IOM Egypt, supra note 235.
331
Law Combating Trafficking in Persons, supra note 9 at 18.
326
66
Another problem emerges from article 26. This article offers reintegration and
training activities, however, they are only offered to Egyptian victims ruling out
foreigners.332 As a result, Eritreans are not eligible for these activities. Article 27
creates a fund to assist the victims of trafficking. This crime-victim compensation
fund continues to be inefficient in addressing the needs of the victims. The importance
of the fund lies in the fact that previous experiences in other countries have proven
that substantial financial compensation can lead to better results than the timely
process of rehabilitation of victims.333 This fund depends on the collecting of the
fines, confiscated sums, and property from the perpetrators of the crime.334 In the
event of the lack of convictions, this fund remains empty. Hence, the management of
this fund continues to be poor.335
Finally, although the Egyptian anti-trafficking law dedicates the fifth chapter to the
protection of victims; it fails to include any provisions that prevent the crime from
occurring in the first place. The law does not include any provision that obligates the
Egyptian government to carry out activities that curtail the crime from actually taking
place. This renders the law short of the prevention provisions of the Trafficking
Protocol by creating another loophole.336 The end result is that the root causes of
human trafficking in Egypt are not tackled at all.
Article 26 states that “The competent authorities shall provide care, education, training, and
rehabilitation programs to the Egyptian victims, whether through governmental or non-governmental
institutions.” This mentions Egyptian victims exclusively. Article 26. AL-JARIDA AL-RASMIYYA, supra
note 160.
333
Studies in the USA and Israel have shown that allowing victims a large financial compensation
enough to open a small business would facilitate their reintegration in society whether they decide to
return to their country of origin or remain in Egypt. Sarah Leevan, Comparative Treatment of Human
Trafficking in the United States & (and) Israel: Financial Tools to Encourage Victim Rehabilitation
and Prevent Trafficking, 6 CARDOZO PUB POL ETHICS J 773, 798 (2007).
334
Article 27. AL-JARIDA AL-RASMIYYA, supra note 160.
335
There is an absence of detailed information on the management of this fund. Interviews conducted
with different stakeholders have revealed absence of concrete information on the administration of this
fund.
336
Article 9 of the Trafficking Protocol covers the prevention mechanisms that states should set in
place. PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN
AND CHILDREN (15 NOVEMBER 2000), A/RES/55/25, SUPPLEMENTING THE UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME, G.A. RES. 25, ANNEX II, U.N. GAOR,
55TH SESS., SUPP. NO. 49, AT 60, U.N. DOC. A/45/49 (VOL. I) (2001), ENTERED INTO FORCE DEC.25,
2003., supra note 89.
332
67
The Executive Regulations formulated following the law were expected to bridge
many gaps in the text of the law and clarify the issues mentioned here; however the
regulations either reiterated the gaps in the law or included very general information
that was not specific enough to clearly establish the roles and distribute the executive
tasks.337 For example, Article 2(b) of the Executive Regulations included a vague
statement on “upholding the human dignity of the victims” and “doing what is
necessary to help them and respect all their generally accepted human rights.”338 Such
general and vague statements are repeated throughout the Regulations and are
difficult to translate into action that actually help the victims and prevent the crime
from occurring.
Until today, the implementation continues to be inadequate. The numerous gaps in the
law render it a failure in incriminating anyone who is or has been involved in
trafficking in the Sinai.339 UNHCR reports knowledge of three cases that were
submitted for prosecution and were subsequently dismissed by the prosecutor’s office
before being sent to court.340 Another sad example is a situation reported by UNHCR
whereby both the victim and the alleged perpetrator were put in the same hospital
room for treatment after the prosecutor ordered them both to obtain forensic medical
reports.341 This shows the prosecutor’s office lack of expertise in dealing with such a
sensitive issue and is unaware of how to address it more effectively.
Another serious challenge regarding the Egyptian anti-trafficking law is the absence
of legal precedents, and therefore, obliging almost all prosecutors to improvise when
handling human trafficking cases.342 In fact, prosecutors tend to frame cases under the
laws that they are more comfortable with.343 This means that cases can be tried under
337
Rabee Hashim, Al-Ahram Exclusively publishes the Executive Regulations for the Anti-Trafficking
Law, AL-AHRAM NEWSPAPER ONLINE PORTAL, December 22, 2010,
http://gate.ahram.org.eg/News/24459.aspx (last visited Jan 30, 2015).
338
Id.
339
The only cases that have been prosecuted in Egypt are of Egyptian child trafficking and women
trafficking. JOY NGOZI EZEILO, supra note 157 at 13.
340
UNHCR CAIRO, supra note 14 at 12–13.
341
Id. at 14.
342
Interview with the Egyptian Ministry of Justice, supra note 156; Interview with UNHCR Cairo,
Egypt, supra note 229.
343
A study on prosecuting cases under this law – carried out by a senior judge - was fully drafted under
the understanding and assumption that the law covers only forced child marriages, excluding all other
68
the anti-prostitution law, the child law, or even the penal code. What complicates the
prosecution process further is the fact that establishing the facts of a trafficking case is
very complicated owing to the nature of the crime; therefore, the process becomes
very tiring and seldom easy for prosecutors given their already heavy workload.344
2. Effective Institutional Efforts
Having an effective institutional framework in place is very important in combatting
human trafficking in light of the complexity and severity of the crime. The UN
Special Rapporteur on trafficking in persons noted in her report on trafficking in
Egypt that coordination between government institutions continued to be weak with
overlapping tasks and minimum resources allocated.345 Interviews held with IOM
officials have also reiterated how ineffective the coordination between the 13
Egyptian ministries and 15 specialized agencies that are members of the antitrafficking committee has been.346 Meetings held on a monthly basis often discuss
general topics and lack proper follow-up on the action plan in place.347 The
government’s establishment of a separate anti-trafficking body with a specific
mandate and allocated resources to address this crime is required. This separate body
should be given the power to carry out any defined action plan in a more efficient
manner.
The foremost institutional defect that Egypt needs to address is the lack of a
systematic approach to collecting and storing data on trafficking in Egypt.348 An
interview conducted with the National Council for Childhood and Motherhood
forms of trafficking taking place in Egypt. The same study only mentions that should there be any
foreign victim identified, the Ministry of Foreign Affairs should be directly informed in order to
coordinate the repatriation of the victim as soon as possible. Ahmed Al Raqeeb, PRESENTATION ON
PROSECUTION AND ACCUSATION IN THE CRIMES OF HUMAN TRAFFICKING 1 & 6, http://www.childtrafficking.org/sites/default/files/elrakeb.pdf.
344
Id. at 2.; Prosecutors explain that they handle daily cases involving mainly armed robberies,
homicide, and drug dealing. They are far from being experts in handling trafficking cases. Interview
with the Egyptian Ministry of Justice, (2015).
345
JOY NGOZI EZEILO, supra note 157 at 8.
346
Interview with IOM Egypt, supra note 239; this view is not shared by an Egyptian official in the
Ministry of Justice who claim that coordination activities are effective, and that the anti-trafficking
committee meets every month. Interview with the Egyptian Ministry of Justice, supra note 341.
347
Interview with IOM Egypt, (2015); Interview with an Egyptian NGO, supra note 220.
348
Law Combating Trafficking in Persons, supra note 9 at 8; JOY NGOZI EZEILO, supra note 157 at 3.
69
(NCCM) revealed a good first step: creating a library for researchers on human
trafficking in Egypt. However, this library is composed of only one book cabinet
located inside the general library of the NCCM.349 One official stated that a process of
creating a legal database on human trafficking is already envisioned but is pending the
establishment of a permanent headquarters for the anti-trafficking committee.350
NCCM has also launched a website called child-trafficking.org which reflects the
Egyptian understanding that the crime is confined to child victims only. Egypt needs
to establish a data collection unit attached to a specialized anti-trafficking body
supervised by the Ministry of Interior that is comprehensive in its address. This
specialized anti-trafficking body could spearhead the efforts for combatting
trafficking in Egypt.
Another area requiring improvement is the identification of victims. Although a
national referral mechanism was developed in 2012 for referring identified victims of
trafficking to the required assistance provision locations, the government has
continuously failed to implement this mechanism efficiently.351 An IOM staff member
explained that even if it is considered effective, the referral mechanism requires
identifying a victim. If the authorities fail in identifying any victims, the referral
mechanism remains useless.352 Additionally, the NCCM Hotline was reported to be
focused entirely on Egyptian family related problems and provided services in the
Arabic language alone, thereby, adding a language barrier for foreign African victims
who may not speak Arabic.353 The hotline needs to be better prepared to receive calls
from non-Egyptians.
Another problem lies with the shelter for the victims. Although the establishment of a
shelter for female victims of trafficking by the NCCM in 2010 was a positive step by
the government, the shelter capacity is 12 victims only.354 This number is too low to
seriously address the needs of the victims. Furthermore, the operation of the shelter
continues to rely mainly on the financial support of the IOM; this is something that
349
Interview with the Egyptian National Council for Childhood and Motherhood, supra note 11.
Interview with the Egyptian Ministry of Justice, supra note 156.
351
UNHCR CAIRO, supra note 14 at 13; United States Department of State, supra note 135 at 163.
352
Interview with IOM Egypt, supra note 347.
353
JOY NGOZI EZEILO, supra note 157 at 9.
354
Interview with the Egyptian National Council for Childhood and Motherhood, supra note 11.
350
70
threatens the sustainability of the support provided should the funding become
unavailable.355 Another problem is the lack of efficient monitoring of the work of the
shelter.356 IOM has reported that monitoring activities are very basic if not completely
absent.357 Another problem is the inability of the shelter to provide services to male
victims of trafficking. This is an issue that requires attention from the government.358
Currently, male victims are referred by the IOM to the Psychosocial Services and
Training Institute in Cairo (PSTIC) which provides them with rental payments for
three months along with psychological therapy. An IOM officer revealed that the idea
of establishing a shelter for male victims was brought to the attention of the
government in 2014; however, no concrete steps have been taken to date.359
Capacity building is another area that requires improving. Several training sessions
have taken place for the capacity building of members of Egyptian law enforcement
for the identification of victims of trafficking. However, in the absence of a
specialized and trained victim identification unit, these efforts remain wasted and
unable to effectively stop the crime in the long run. There also has not been a
comprehensive guide published on the procedures of identification and how to further
refer the victims to the available protection channels.360 This leads to an absence of a
systematic law enforcement approach to identifying victims. Furthermore, the
capacity building programs in place fail to include journalists who are in a good
position to carry out investigations into trafficking and supporting the activities of the
government.361
The problem of providing proper capacity building activities also extends to the
domain of awareness-raising campaigns. There is no doubt that these institutions need
to carry out more effective awareness-raising campaigns targeting potential victims.362
During the interview, the IOM staff member explained that the government didn’t not monitor the
work of the shelter regularly which lead to the dissatisfaction of some victims. Interview with IOM
Egypt, supra note 347.
356
Interview with IOM Egypt, supra note 235.
357
Interview with IOM Egypt, supra note 347.
358
JOY NGOZI EZEILO, supra note 157 at 16.
359
Interview with IOM Egypt, supra note 347.
360
United States Department of State, supra note 135 at 164.
361
JOY NGOZI EZEILO, supra note 157 at 18.
362
Id. at 14.
355
71
This involves coordinating with stakeholders such as the IOM and UNHCR who have
access to different African communities living in Egypt to organize campaigns and
training sessions on human trafficking and help in the identification of the victims.
Awareness raising activities for potential victims has long been considered as one of
the most effective means of preventing human trafficking.363 In 2012, the antitrafficking committee printed out and distributed brochures to different embassies
warning them of the dangers of human trafficking.364 The activity assumed that these
embassies – with specific regard to Eritrea – enjoy an active relationship with their
communities in Egypt. This represents a gross misunderstanding. The fact that most
Eritreans who have opted to escape from their home countries and seek asylum in
Egypt, are unwilling to have any contact with their embassies as it threatens their
security. For better dissemination of awareness raising brochures on human
trafficking, Egypt should rely on the outreach efforts of agencies like the UNHCR, the
IOM, and other community-based organizations that have direct contact with the
Eritrean community in Egypt. The UNHCR and IOM, particularly, can take this
awareness campaign further to the refugee camps in Sudan in an attempt to curb the
crime at the source. The use of social media as a means for awareness-raising can also
be better utilized.
Framing the problem as one of illegal migration is not the solution for it.
Unfortunately there is a general perception in Egyptian society towards refugees and
asylum seekers as persons burdening the economy, especially after the 2011 Egyptian
revolution. One of the negative aspects of any democratic transitional period is the
revival of hardline nationalistic views that are invariably accompanied by xenophobic
sentiments towards foreigners. Any newly-elected government would have to meet
Egyptians’ political and economic aspirations, whose lack of fulfillment indirectly
feeds into xenophobia and creates a hostile environment for foreign migrants.
As a direct result of framing the problem as one of illegal immigration, in 2014, the
Egyptian government established a National Coordination Committee for Combatting
363
364
MEKONNEN AND ESTEFANOS, supra note 1 at 24.
AMBASSADOR NAELA GABR, supra note 198 at 5.
72
and Preventing Illegal Migration.365 The first plan drafted by this committee does not
acknowledge that human trafficking is closely related to the problem of illegal
migration. In fact, the plan does not include any activity involving coordinating with
the Egyptian anti trafficking committee.366 Ambassador Naela Gabr, who currently
heads this committee, has in fact stated publicly that the committee targets two forms
of illegal migration: one involves all Africans originating from the Nile Basin
countries who infiltrate Egypt, and the other migrants attempting to illegally cross the
Mediterranean Sea.367 Without admitting the existence of the problem in the Sinai, the
entire institutional framework becomes useless in putting an end to this problem.
The failure of the government to engage NGOs in the entire process of prevention,
protection and prosecution, also renders the institutional efforts in Egypt ineffective in
solving the problem of human trafficking of Eritreans. When asked about NGO
support in addressing trafficking in the Sinai, UNHCR was unaware of any, 368 while
the IOM mentioned the name of only one NGO.369
Egypt should adopt a stakeholder approach in addressing this problem. Experience
shows that NGOs do not suffer from the bureaucratic problems that the government
does and are able to work efficiently, especially in carrying out investigations370 and
providing protection services for victims. NGOs also work on diversifying their
sources of funding, which solves another problem that governmental institutions are
unable to address.371 NGOs in Egypt can be easily contracted to support government
activities in identifying victims,372 provide services that require expertise unavailable
at the government facilities such as mental health evaluations, and group counseling
for reintegration of victims.
365
The National Coordinating Committee on preventing and combatting illegal migration, supra note
187.
366
Id.
367
Ambassador Naela Gabr, INTERNATIONAL MECHANISMS FOR COMBATTING AND PREVENTING
HUMAN TRAFFICKING AND ILLEGAL MIGRATION (2014),
http://www.mfa.gov.eg/Arabic/Ministry/illegal_migration/Pages/default.aspx?PageNumber=3 (last
visited Feb 3, 2015).
368
Interview with UNHCR Cairo, Egypt, supra note 229.
369
Interview with IOM Egypt, supra note 347.
370
An Egyptian NGO managed to discover one of the locations that Eritreans were held captive at.
EveryOne Group, supra note 14.
371
Leevan, supra note 333 at 798.
372
Law Combating Trafficking in Persons, supra note 9.
73
Last, any institutional efforts will fail to achieve good results in combatting human
trafficking without proper funding. Efforts carried out in Egypt are seriously
underfunded.373 Ambassador Naela Gabr reported in 2012 that the topic continues not
to be a priority for the Egyptian government in the aftermath of the 2011
Revolution;374 furthermore, she reiterated the heavy reliance of all anti-trafficking
activities in Egypt on international funding by UN agencies and the European
Union.375 When asked about the Alexandria University legal clinic established to
provide legal aid for victims of trafficking, UNHCR explained that it was shut down
in 2013 owing to lack of funding.376 It is also uncontested that the funding directed
towards publications and training sessions comes from UN agencies, and specifically
the IOM.377 The Egyptian anti-trafficking committee has not established any
contingency plan covering the situation when these funds cease to exist.378
These deficiencies in the institutional framework in place need to be addressed as
soon as possible if there is serious intention to curb human trafficking of Eritreans in
Egypt. Attention paid to buttressing law enforcement is also essential.
3. Robust Law Enforcement
Effective law enforcement is central to fighting human trafficking. Interviews
conducted with the IOM and UNHCR have revealed the need for a robust police force
that understands the nature of the crime and is qualified to identify victims.379
Working on law enforcement involves two initiatives. The first is a robust police force
that is designed and mandated to curb the crime in North Sinai, and the second is
having a comprehensive legal system that is capable of incriminating traffickers and
protecting the victims.
373
Interview with the Egyptian Ministry of Justice, supra note 156.
AMBASSADOR NAELA GABR, supra note 198 at 12.
375
Id. at 13.
376
Interview with UNHCR Cairo, Egypt, supra note 229.
377
Interview with IOM Egypt, supra note 235; Interview with the Egyptian National Council for
Childhood and Motherhood, supra note 11.
378
Interview with the Egyptian Ministry of Justice, supra note 156; Interview with UNHCR Cairo,
Egypt, supra note 229.
379
Interview with IOM Egypt, supra note 235; Interview with IOM Egypt, supra note 347; Interview
with UNHCR Cairo, Egypt, supra note 229; Interview with an Egyptian NGO, supra note 220.
374
74
The small number of successful prosecutions reflects inadequate understanding and
application of the law. In 2012, the Egyptian government prosecuted two cases with a
total of 15 persons charged under the Egyptian anti-trafficking law; all of them relate
to trafficking in women for the purpose of prostitution in exchange for financial
rewards.380 In 2013, there was not a single case conviction.381 Only three cases have
been recorded for trafficking of Eritreans in the Sinai to date in Egypt, and they all
unfortunately have ended without any conviction.382 In the meantime, a trafficker who
has confessed his crimes committed in the Sinai has admitted that he himself had
killed around 1,000 victims.383 Another trafficker admitted to receiving about 100
sub-Saharan Africans a week between 2009 and 2013, amounting to 15,000 to 20,000
victims.384 One Egyptian official stated that around 27 cases were in the legal pipeline
for 2014; however, no conclusive sentences had taken place.385 He further stated that
none of these cases were regarded victims from the Sinai. As sad as the reality is, the
legal system has failed these victims.
One of the problems with law enforcement is that Egyptian authorities in the Sinai
continue to give the matter low priority.386 The government assumes that the ongoing
military operations in the Sinai would also automatically end any form of human
trafficking taking place there too.387 However, this assumption is short-sighted given
that the military is focusing on national threats considered to be of greater importance;
these include eliminating terrorist groups in the Sinai, and curtailing the smuggling of
subsidized Egyptian goods to Gaza. And even were it assumed that the Egyptian
military operation could curtail the commission of human trafficking in the Sinai for
380
Egyptian Court of 1st Instance, No. 8595/2012, (2012), https://www.unodc.org/cld/case-lawdoc/traffickingpersonscrimetype/egy/no._85952012.html?tmpl=old; Court of Cassation, Appeal No.
6772, (2012), https://www.unodc.org/cld/case-lawdoc/traffickingpersonscrimetype/egy/2013/appeal_no._6772.html?tmpl=old.
381
United States Department of State, supra note 135 at 163.
382
Two of these cases were dismissed for lack of evidence, while the third one was dismissed as the
prosecutor acknowledged that the accused person was forced to torture other people to avert being
tortured himself. SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 50;
Interview with UNHCR Cairo, Egypt, supra note 229.
383
van Reisen, Estefanos, and Rijken, supra note 20 at 63.
384
Id. at 64.
385
Interview with the Egyptian Ministry of Justice, supra note 156.
386
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 58; United States
Department of State, supra note 135 at 163.
387
AMBASSADOR NAELA GABR, supra note 198.
75
good, this would likely result in the changing of the routes used by the traffickers but
not the actual numbers of people trafficked. The UNHCR has already identified some
cases trafficked from Sudan through Aswan to Marsa Matrouh on the Mediterranean
coast of Egypt that would normally have chosen the Sinai route.388
Another inhibiting factor is that officials in Egypt continue to frame the problem as
being one of illegal migration, or completely denying the existence of the problem at
all with the excuse of lacking reliable information on the existence of trafficking.389
When confronted with photographs and video footage of Eritrean victims in the Sinai,
an Egyptian official responded that the evidence was inconclusive and aimed at
villifying Egypt.390 One interviewee insisted that traffickers are so assured of the
complete lack of police attention to the crime that traffickers are known to prowl for
victims in areas in Cairo where Eritreans reside.391
Evidence also substantiates the claim that Egyptian authorities even force the arrested
Eritreans to financially cover their own deportation.392 Adding to the injustice is the
Egyptian detention facilities in the Sinai’s lack of any form of basic medical support
for Eritreans identified whether victims of trafficking or smuggling.393
Another dormant problem is the anti-trafficking committee’s failure to discuss any
plan in the aftermath of the Sinai military operation to combat terrorists. There is
nothing that guarantees that human trafficking in the Sinai would not resume upon
announcing the end of these operations.394 Although the interviewee at the Ministry of
Justice acknowledged the possibility that some of the Eritreans identified in the Sinai
might indeed be trafficking victims, the interviewee continuously used the term illegal
infiltrator.395 This shows how victims are perceived as being criminals by officials
within the government.
388
Interview with UNHCR Cairo, Egypt, supra note 229.
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 59; United States
Department of State, supra note 135 at 164.
390
Interview with the Egyptian Ministry of Justice, supra note 156.
391
Interview with an Egyptian NGO, supra note 220.
392
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 67.
393
van Reisen, Estefanos, and Rijken, supra note 20 at 92.
394
Interview with the Egyptian Ministry of Justice, supra note 156.
395
Id.
389
76
There is also more to be done by the Egyptian police. The police need to review their
approach to addressing the problem. Instead of having a small administrative sub-unit
addressing human trafficking created under the Assistant Minister of Interior for
Human Rights,396 a more robust anti-trafficking body needs to be created inside the
Ministry of Interior. It would involve officers receiving special training on combatting
trafficking and identifying victims. This body could adopt other states’ best practices
in investigating and addressing trafficking as usual.397
It is also recommended that the officers enrolled in this specialized body hold more
permanent positions. They would not be subject to frequent rotation to other police
units, owing to the complexity of the trafficking crime and necessity for developing
expertise.398 This would provide both commitment and consistency.
Directly related to building police expertise, more training of police officers is
required on identification of victims of trafficking and handling traumatized
victims.399 In 2012, the anti-trafficking committee reported that the Ministry of
Interior had indeed included human trafficking in the periodic training sessions
conducted for police officers.400 However, in these training sessions the topic was
allotted only two to four hours.401 This is not enough time to adequately train officers
on such a complicated crime. The decrease in number of persons referred to the
government protection services in 2013 was directly related to the continued lack of
trafficking awareness among the law enforcement officials and the judiciary as
well.402
In addition on working on training police on the nature of the crime, the Egyptian
border patrol officers can chart the locations where victims have reported to have
been held in order to create stronger police presence in these areas. More monitoring
activities conducted on the work of the border patrol officers are also encouraged.403
396
Id.
Law Combating Trafficking in Persons, supra note 9 at 16.
398
Interview with the Egyptian National Council for Childhood and Motherhood, supra note 11.
399
Law Combating Trafficking in Persons, supra note 9 at 21.
400
AMBASSADOR NAELA GABR, supra note 198 at 6.
401
Id. at 6.
402
United States Department of State, supra note 135 at 164.
403
Law Combating Trafficking in Persons, supra note 9 at 16.
397
77
The same patrols must stop the “shoot-to-kill” approach that is adopted on the borders
with Israel.404
There must be more attention paid to granting victims effective legal assistance. A
law protecting the victims must ensure that they are offered adequate legal assistance
and possibly granted residence permits in Egypt should they require so under
Egyptian law. The Egyptian Ministry of Interior should maintain an open channel of
communication with UNHCR and other local NGOs that are able to provide legal
assistance to surviving victims to acquire legal residence should they request, and to
pursue the prosecution of traffickers.405 At the moment, IOM refers victims to legal
assistance provided by the Egyptian Foundation for Refugee Rights (EFRR).406 As
explained in chapter two, most of the African victims of trafficking are Eritreans;
many of them have fled Eritrea for reasons that would qualify them for refugee status
in Egypt; they would be subjected to persecution were they forced to return to
Eritrea.407 Furthermore, even if Eritrea did not treat them as criminals, there remains a
complete absence of any form of rehabilitation or reintegration of the victims in
Eritrea which pays attention to their special needs as victims of trafficking.408
4. Economic Empowerment of the Sinai Tribes
In addition to amending the law, reviewing the institutional framework, and working
on better law enforcement, the Egyptian government must empower the Sinai tribes.
Evidence suggests that most of the persons involved in human trafficking in Egypt
belong to the Bedouin Sawarka tribes of North Sinai.409 The Sinai Sawarka tribes
have historically suffered from ongoing negligence and marginalization by the
404
SIMPSON AND HUMAN RIGHTS WATCH (ORGANIZATION), supra note 12 at 69–70; van Reisen,
Estefanos, and Rijken, supra note 20 at 96.
405
Leevan, supra note 333 at 799.
406
Interview with IOM Egypt, supra note 235.
407
The Eritrean Ambassador in Egypt stated in a response to the problem in 2011that these victims are
fugitives and have fled Eritrea illegally and therefore are not entitled to protection. MEKONNEN AND
ESTEFANOS, supra note 1 at 26–27.
408
UNHCR explains that in light of the most recent information available on victims of trafficking
from Eritera, it advises that these victims would fall under its mandate as members of a particular
social group who will be as such subjected to persecution upon forcible return back to Eritrea.
UNHCR, supra note 142 at 33.
409
HUMPHRIS, supra note 19 at 2.
78
Egyptian government and, as a result, have sought other income sources. These
include smuggling and trafficking. As long as the Sawarka tribes continue to be
economically marginalized by the government, human trafficking will continue in the
Sinai.410
With the weak police presence in the Sinai, the Bedouins have always been powerful
in mobilizing resources in the Sinai, and are knowledgeable of its topography. When
the Sawarka tribal elders of the Sinai were approached by the authorities to stop this
crime, they explained that the criminals are single renegades from the tribe who
persist in continuing in these activities;411 and there options were limited as any harsh
treatment carried out against these criminals would destabilize the peace among the
many sub-tribes in the Sinai and would eventually lead to uncontrolled violence. This
is something that the Egyptian government would prefer to avoid at all costs and
partially explains its inactivity.412
Depending solely on the Egyptian military operation launched in North Sinai to stop
all of the criminal activities carried out there is a myth.413 It is unreasonable that the
Egyptian government would engage in a fight with Bedouins of the Sinai forever. The
Egyptian media, unfortunately, systematically frames the Sawarka tribes as being
terrorists, or turns a blind eye to the ongoing uprooting of this tribe.414 The Egyptian
government needs to understand that the military operation will not continue forever,
and that a political settlement will eventually have to take place with the Sawarka
tribes. Should this arrangement fail to involve the inclusion of these tribes in a
comprehensive economic plan for developing North Sinai, they will continue doing
410
The Sawarka Tribes were previously involved in trafficking Russian prostitutes to Israel and
smuggling weapons and other goods to Gaza. Ahmed Atef, THE SAWARKA OF SINAI: THE FIRST
EGYPTIAN TRIBE LABELED AS A TERRORIST ORGANIZATION BY ISRAEL AL-SABAH NEWS PORTAL
(2013), http://elsaba7.com/NewsDtl.aspx?Id=128725 (last visited Feb 9, 2015).
411
Ahmed Abu Deraa’, DEATH OF THE SAWARKA TRIBE LEADER IN NORTH SINAI INSIDE A SHOP AT
ARISH CITY AL-MASRY AL-YOUM NEWS PORTAL (2012),
http://www.almasryalyoum.com/news/details/179855 (last visited Feb 8, 2015).
412
MEKONNEN AND ESTEFANOS, supra note 1 at 18. It is noteworthy that Al-Sawarka tribe dominates
north Sinai. It is composed of 15 sub-tribes and each sub-tribe is composed of several families.
413
Experience shows that depending on holding a military tight grip in Sinai have led to many
Eritreans unwilling to contract smugglers to take them to Israel. As a result, more kidnapping incidents
have surfaced in Sudan in 2011. WELDEHAIMANOT, supra note 20 at 6.
414
Ahmed Atef, supra note 410.
79
what they are used to relying on to survive, including smuggling activities, and human
trafficking in the Sinai.415
5. Diplomatic Efforts
Increasing diplomatic efforts is a constructive approach and profits from the
experience of other countries in combatting this crime. Although Egypt has previously
been engaged on the diplomatic level in addressing human trafficking in general,416
these diplomatic efforts have not translated into action against trafficking.417 More
efforts should be exerted in this field to approach countries with a successful record in
dealing with this crime, like the Netherlands, the USA, Finland and other countries.418
Overpowering these strong and wealthy networks of traffickers requires effective
collective action by source, transit, and destination states. Continuous negotiations
among Eritrea, Ethiopia, Sudan, Egypt and also Israel to find a new approach to
addressing migration problems must take place in order to reduce this burgeoning
demand for illegal traveling.
One example of the importance of collective action is that as long as there is a supply
of victims through the Rashaida tribes in Sudan and Eritrea, the crime will not be
stopped in Egypt, as there are strong incentives for the Sinai traffickers owing to its
lucrative nature.419 And the Eritrean government willfully neglects the suffering of its
people. It was not before October 2014 that Eritrea acceded to the Palermo Protocol,
415
The same approach should be sought by the Sudanese government when addressing the problem by
including the Rashaida tribe elders in a long term process of empowering the east of Sudan
economically. WELDEHAIMANOT, supra note 20 at 17; HUMPHRIS, supra note 14 at 17.
416
In 2005, Egypt adopted the ‘Arab guiding law on fighting trafficking’, and in May 2009, Egypt was
actively engaged in ‘the thematic dialogue on human trafficking at the [UN] General Assembly’. In
2010, Egypt participated in the launch of the ‘Arab initiative for building national capacities for
combating human trafficking’. JOY NGOZI EZEILO, supra note 157 at 15–16.
417
The UN Special Rapporteur on human trafficking stated that “[these agreements] have not had
substantial impact in the fight against trafficking, which points to the need to further strengthen
bilateral cooperation, particularly in protecting migrants’ rights and preventing an exploitative form of
migration which may lead to trafficking.” Id. at 16.
418
See United States Department of State, supra note 135; Law Combating Trafficking in Persons,
supra note 9 at 21.
419
MEKONNEN AND ESTEFANOS, supra note 1 at 18.
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as it had not considered trafficking as an issue that needs to be addressed.420
Therefore, the Egyptian government has no diplomatic pressure from Eritrea to
prioritize the matter. This is also true of Sudan. The Sudanese authorities are well
aware of the human trafficking crimes committed by the Rashaida tribes on its
territory, but take no action.421
Another example of effective collective action is negotiating with Israel to agree on
allowing more Egyptian troops in the Sinai Peninsula. The Sinai is a militarily
sensitive geographical area. Being at the border with Israel, Sinai has since the 1978
Camp David Accords been a demilitarized zone. The accord limits number of the
police forces, and level of armament. It thus lacks the necessary personnel, the
weapons to overpower the traffickers. As a result, traffickers continue to thrive in a
relatively unmonitored territory.
Parallel negotiations for addressing political tensions among implicated states are also
necessary; for example, the disputed region of Halaib and Shalatin between Egypt and
Sudan falls directly in the zone where most traffickers route their victims. On the
other hand, Eritrea and Ethiopia continue to disagree on their border demarcation line.
In the absence of resolution to those border issues, it is unexpected that both countries
would work together on addressing trafficking taking place at these border areas.
Further dialogue with destination states - mainly Europe and Israel - should be held in
order to negotiate migration policies to curb the trafficking business. Most of the
destination states, are primarily found in the first world, and are blamed for having
drastically tightened their borders against the freedom of movement. This has led to
many victims falling prey to these traffickers being desperate themselves to reach
their destinations. States have even tightened their borders against asylum seekers and
refugees, allowing them, as well, to fall victims to traffickers.
420
In 2007, allegations were made that some Eritrean government officials were involved in trafficking
young Eritrean boys to work as camel jockeys in the gulf. In 2011 names of Eritrean traffickers were
mentioned in the UN Eritrea-Somalia Monitoring Group Report without any reaction taken by Eritrea.
Id. at 9, 12 & 20.; Report of the Monitoring Group on Somalia and Eritrea pursuant to Security Council
resolution 1916 (2010) (S/2011/433), supra note 14 at 109–110.
421
Names of traffickers were shared with the Sudanese authorities; however, nothing was done.
MEKONNEN AND ESTEFANOS, supra note1 at 19; The Rashaida Tribes are nomadic camel herders who
have historically taken the route to Egypt crossing the desert as the only camel market in the region is
located in Egypt. See HUMPHRIS, supra note4 at 9.
81
To be successful, these diplomatic efforts must not be manifestly politically
motivated, and the language used must not point to the shortcomings of the
governments. Without a transnational approach to addressing this crime, it will be
impossible to stop it. Involving local NGOs in the diplomatic efforts would further
reflect the importance of the negotiations towards the protection of victims.422
One area that the Egyptian government needs to work more on is relaying its recent
expertise in addressing human trafficking to Sudan. Egypt can offer Sudan best
practices on tackling criminal networks based on its expertise acquired from the
military campaign conducted in the Sinai. A similar crackdown on traffickers in east
Sudan would directly lead to reducing the commission of this crime.423 This expertise
can be relayed indirectly through international organizations like the UNODC, which
is capable of providing policing advice to Sudan at no cost and without any hidden
agendas. This is already happening as it was reported in 2012 that the IOM had been
working with the Sudanese government to draft an anti-trafficking legal framework;
however there is no current information on this matter.424
Diplomatic efforts with countries of destination are also taking place. In November
2014, the European Union and the African Union launched an initiative aimed at
controlling illegal migration in the Horn of Africa commonly known as the Khartoum
Process.425 This initiative involves funding migration-related projects in Egypt,
Sudan, Eritrea, Ethiopia, Somalia, South Sudan, Djibouti, Kenya, and Tunisia.
Through this initiative, the involved African countries are to establish reception
centers and work more proactively in identifying criminal migration networks in order
to curb the various forms of irregular migration to Europe. The Khartoum Process will
hopefully provide a better forum for coordinating transnational efforts to curb human
422
WELDEHAIMANOT, supra note 20 at 12.
Jacobsen, Robinson, and Lijnders, supra note 107 at 14; MEKONNEN AND ESTEFANOS, supra note 1
at 18.
424
HUMPHRIS, supra note 14 at 16.
425
European Council on Refugees and Exiles, KHARTOUM PROCESS: EU AND AFRICAN UNION LAUNCH
INITIATIVE AGAINST SMUGGLING OF MIGRANTS (2014), http://ecre.org/component/content/article/70weekly-bulletin-articles/911-khartoum-process-eu-and-african-union-launch-initiative-againstsmuggling-of-migrants.html (last visited Mar 3, 2015).
423
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trafficking in the Horn of Africa.426 The active engagement of Europe in this process
derives from the high number of Eritrean asylum applications lodged in Europe in
2014.427 Although the Khartoum Process gives hope of more financial support to
various programs addressing human trafficking, this process does not aim mainly at
protecting victims or preventing human trafficking. Its ultimate goal is to reduce
irregular migration and asylum applications in Europe.
6. Relentless Monitoring Activities by International Organizations
For effective execution of any government plan to stop this crime, international
organizations are expected to continue monitoring carefully the situation and provide
the necessary assistance and expertise to the Egyptian government. International
agencies like the UN, the League of Arab States (LAS), and the European Union,
represent ample resources for supporting the Egyptian efforts in addressing this crime.
The LAS provides a geographical network that would enable Egypt to coordinate
transnational activities with Sudan to stop the supply of victims. Moreover, LAS is
able to provide funding to necessary protection activities that currently rely
completely on the support of the IOM.428 Diversifying funding resources would help
in securing the continuity of activities and developing new ones as well. During the
interviews conducted with the UNHCR and IOM there was no mention of any
involvement of LAS in any anti-trafficking activities in Egypt, to the extent that one
interviewee was surprised that LAS had the topic on its agenda at all.429 This feeds
into the problem of lack of coordination of activities carried out. The Egyptian antitrafficking committee should work more on inclusion of all stakeholders in
combatting the crime.
426
Declaration of the Ministerial Conference of the Khartoum Process (EU-Horn of Africa Migration
Route Initiative), (2014), http://italia2014.eu/media/3785/declaration-of-the-ministerial-conference-ofthe-khartoum-process.pdf (last visited Mar 6, 2015).
427
In 2014, 11,185 Eritreans lodged asylum applications in different countries of the European Union,
making them the second largest group after Syrians. European Council on Refugees and Exiles, supra
note 425.
428
LEGAL AFFAIRS UNIT, TECHNICAL SECRETARIAT OF THE ARAB MINSTERS OF JUSTICE, supra note
249.
429
Interview with UNHCR Cairo, Egypt, supra note 229.
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Access acquired by stakeholders to different facilities in the Sinai continues to be a
major obstacle that needs to be tackled. UNHCR explains that it tirelessly requests to
have access from the relevant Egyptian authorities to visit prisons in Al-Arish,
Aswan, and other border points of Egypt; however, being granted access is rare owing
to different political variables.430 UNHCR is expected to continue requesting access to
North Sinai and to establish direct links with the police authorities there in order to
facilitate the process of identifying the victims who fall under the protection of the
Refugee Convention. UNHCR should continue to reiterate the importance of Egypt’s
adhering to its international legal obligations regarding victims of trafficking.
The same problem of granting access to persons who might be identified as victims of
trafficking was also raised by the IOM. IOM had already established a presence in
North Sinai tasked with arranging the repatriation of arrested illegal immigrants. The
IOM staff members were able to identify victims of trafficking while detained in
North Sinai, although they were not mandated to do so. Unfortunately, IOM staff
members were evacuated from the Sinai upon the beginning of the military operation
during the end of 2012.431 It is recommended that IOM activities in North Sinai be
resumed as soon as possible for facilitating the identification of human trafficking
victims and relay protection activities accordingly.
430
431
Id.
Interview with IOM Egypt, supra note 235.
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Conclusion
This thesis has mapped out and evaluated the efforts of the Egyptian
government in addressing the problem of the trafficking of Eritrean nationals in
the Sinai. It analyzed the activities carried out in this regard and clarified the
reasons behind the inability of the Egyptian government to solve the problem.
It also provided recommendations for future development. The crime of human
trafficking continues to be one of the most serious challenges facing the world.
With its high profit margin and large numbers of vulnerable individuals it is
unlikely that an end to this crime will come about without a more
comprehensive approach.
In Egypt, human trafficking has existed for a long time and in different forms.
The trafficking of Eritreans started becoming visible in 2006. Since that time,
comprehensive attention to the trafficking of Eritreans continues to be absent.
This is largely due to the Egyptian government’s failure to give this particular
form of trafficking adequate attention. The recent steps taken by Egypt in
drafting and promulgating a law to combat and prevent human trafficking is a
commendable move.
However, much remains to be done when it comes to trafficking of Eritreans in
the Sinai. Failure to acknowledge this type of trafficking and framing it instead
as a problem of illegal migration has resulted in injustice and suffering for
many.
85